HomeMy WebLinkAboutPD BACKGROUND & RECOMMENDATION REPORT (PL-CCI-2022-002)BR-CCInitiated.AmendCh25.9.8.2022
COUNTY OF HAWAI`I PLANNING DEPARTMENT
BACKGROUND AND RECOMMENDATION
COUNTY COUNCIL INITIATED BILL NO. 194 (PL-CCI-2022-000002)
AMENDMENT TO CHAPTER 25, ARTICLE 2, DIVISION 4 OF THE HAWAI`I
COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO
CONDITIONS ON CHANGE OF ZONE ACTIONS
The County Council referred a bill for an ordinance amending Chapter 25, Article 2,
Division 4, of the Hawaii County Code 1983 (2016 Edition, as amended), relating to
conditions on change of zone actions. The purpose of this amendment is to clarify that the
Planning Director may not extend the time allowed to satisfy conditions within a change
of zone ordinance unless specifically authorized by the County Council.
PURPOSE OF BILL 194
1. The Hawaii County Council has introduced Bill No. 194, (Planning
Department Exhibit 1), which seeks to amend Chapter 25 (Zoning Code),
Article 2, Division 4, of the Hawaii County Code 1983 (2016 Edition, as
amended), relating to conditions on change of zone actions.
2. The purpose of this bill is to clarify that the Planning Director may not extend the
time allowed to satisfy conditions within a change of zone ordinance unless
specifically authorized by the County Council.
PROPOSED AMENDMENTS TO HCC CHAPTER 25 (ZONING)
3. Bill 194 seeks to amend Article 2. Division 4. of Chapter 25, Conditions on
change of zone as follows:
■ Section 25-2-44(b): Changes proposed for this section include modifying
language to clarify that requests to change or alter conditions of any change of
zone ordinance shall be processed in the same manner as a new zone change.
Furthermore, new proposed language indicates that unless specifically
authorized by the County Council, extensions of time to satisfy conditions of a
change of zone ordinance may not be allowed by the Planning Director.
■ Section 25-2-44(c): Changes proposed for this section include the deletion of
all current language on failure to fulfill change of zone conditions within
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specified time limitations and the addition of submittal instructions for a
change of zone amendment, which is currently found in section 25-2-44(b).
■ Section 25-2-44(d): The draft bill proposes to add this new section to clarify
that if the applicant fails to fulfill any conditions of the change of zone
ordinance within the specified time limitations, the Planning Director or
County Council may initiate the process for enactment of an ordinance
reverting the affected property back to its original zoning designation or a
more appropriate zoning designation in accordance with section 25-2-43.
AGENCY COMMENTS
4. Fire Department: (Planning Department Exhibit 2 — September 8, 2022
Memo)
AGENCIES — NO COMMENTS/CONCERNS
5. Department of Public Works- Engineering Division, Department of Water Supply
AGENCIES- NO RESPONSE PROVIDED
6. Department of Public Works -Building Division, Department of Public Works -
Traffic Division, Department of Water Supply, Department of Environmental
Management, Police Department, Office of Housing and Community
Development
PUBLIC COMMENTS
7. Testimony from Mark Van Pernis: (Planning Department Exhibit 3 — August
24, 2022 Email)
PLANNING ANALYSIS OF THE IMPACTS OF BILL 194
Since the late 1980's, Planning Directors have historically added the current
standard "administrative time extension" condition to change of zone ordinance
recommendations that provides the Planning Director the authority to grant a one-time,
administrative time extension provided that the applicant, successor, or assigns is able to
justify the need for the additional time by providing a request, in writing, that meets the
following criteria:
The non-performance is the result of conditions that could not have been
foreseen or are beyond the control of the applicant, successors or assigns,
and that are not the result of their fault or negligence.
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2. Granting of the time extension would not be contrary to the General Plan
or Zoning Code.
3. Granting of the time extension would not be contrary to the original
reasons for the granting of the change of zone.
4. The time extension granted shall be for a period not to exceed the period
originally granted for performance (i.e., a condition to be performed
within one year may be extended for up to one additional year).
5. If the applicant should require an additional extension of time, the
Planning Director shall submit the applicants' request to the County
Council for appropriate action.
Currently, following an applicant's written request for an administrative time
extension, Planning Department staff conducts a thorough review to verify compliance
with conditions of the original ordinance and confirms that the request meets the criteria
for granting an administrative time extension listed above.
When necessary, the Planning Department has requested more specific
justification for how the request meets criterion number one (1) or to require completion
of conditions of approval such as payment of water commitment fees, etc. If the applicant
has exceeded the timeframe allowed for requesting an administrative time extension, the
Planning Department forwards the request to the Planning Commission and County
Council.
Finally, if the request is deemed complete and all criteria are satisfied, the
Planning Director does not have the authority to approve an administrative time extension
beyond the amount of time originally granted, in accordance with criteria number five (5)
and any further extension of time would require approval of the County Council.
As with any other proposed condition of approval, the County Council, as the
decision -making body, currently has the ability to modify or remove this administrative
time extension condition and require that the applicant present any request for a time
extension directly to the County Council through the Planning Commissions.
PLANNING DIRECTOR'S RECOMMENDATION
The County Council has always had the authority to add or remove conditions of
rezones that are recommended by the Planning Director and Planning Commissions. For
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40+ years this standard administrative time extension condition has been recommended
to be included in rezone ordinances by the Planning Directors and Planning Commissions
and has been consistently adopted by the County Council. Unless there is a compelling
reason to change this current practice, the current Planning Director will continue to
recommend this condition be included in rezone ordinances and the County Council can
continue to exercise their authority to remove the condition if they choose to.
The Planning Director appreciates the time and effort the County Council has
taken to draft the legislation, and as it does not change the Planning Department's current
practice, the Planning Director recommends that the Planning Commissions send a
favorable recommendation of Bill No. 194 to the County Council.
The Planning Commissions may approve the Director's recommendation. The
Commissions may also offer revisions to the bill. The Windward and Leeward Planning
Commission's recommendations will be forwarded separately, but at the same time, to
the County Council for their consideration and decision.
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Ashley Lehua Kierkiewkz
Council District 4
Puna Makai Email.
HAWAM COUNTY COUNCIL
County of Hawaii
Hawaii County Building
25 Aupuni St.,
Hilo, Hawai'i, 96720
DATE: August 17, 2022
TO: Zendo Kern, Planning Director
Windward Planning Commission
Leeward Planning Commission
FROM: Ashley L. Kierkiewicz, Chair, Planning Committee Chair
SW
try.. Phone: (808) 961-8625
t._A Fax: (808) 961-8912
aserkrewrcz@hawaiicounty.gov
C4
Cr- C14
SUBJECT: Referral of Bill 194; An Ordinance amending Chapter 25 Article 2, Division 4,
Section 25-2-44, of the Hawaii County Code 1983 (2016 Edition, As Amended),
related to conditions on change of zone.
Pursuant to Section 25-2-43(b) of the Hawaii County Code, I am submitting Bill 194 for your
comment and recommendation. I also request that you forward this to the Leeward and
Windward Planning Commissions for their comments and recommendations, as required.
Section 25-2-43(b)(4) requires that the comments/recommendations be returned within 120 days.
At its meeting of August 16, the Committee on Planning voted 7 "ayes" and 2 "excused" to
approve the referral to your department and the commissions.
After your and the Commissions' review, please return all comments and recommendations to
the Council Chair for proper referral to committee.
Thank you for your attention to this matter.
AKljs
Attached: Bill 194
Planning Dept.
Exhibit 1
Serving the Interests of the People of Our Island
Hawai `i County Is an Equal Opportunity Provider And Employer
Dr. Holeka Goro Inaba
Council Member, District 8, N. Kona
HAWAI`I COUNTY COUNCIL
County of Hawai 'i
West Hawaii Civic Center, Bldg. A
74-5044 Ane Keohokalole Hwy.
Kailua-Kona, Hawaii 96740
DATE: July 20, 2022
TO: Maile Medeiaros David, Council Chair
and Members of the Hawaii County Council
Qffice: (808) 323-4280
Email.•holeka. inaba@hawaiicounty.gov
FROM: Dr. Holeka Goro Inaba, Council Member
Council District 8 4 •
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SUBJECT: AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 2, DIVISION 4,
SECTION 25-2-44, OF THE HAWAI`I COUNTY CODE 1983 (2016 EDITION,
AS AMENDED), RELATED TO CONDITIONS ON CHANGE OF ZONE -
Please find attached a bill for an ordinance amending chapter 25, article 2, division 4, section 25-
2-44 of the Hawaii County Code 1983 (2016 edition, as amended), related to conditions on
change of zone.
We are requesting that this bill be placed on the next available Committee Meeting agenda.
Thank you.
HGI/wpb
Att.
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Comm. No. %%
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Rot. ore. JU _ 2 Q m
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Hawaii County Is an Equal Opportunity Provider and Employer
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COUNTY OF HAWAI`I
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ORDINANCE NO.
STATE OF HAWAII
BILL NO. 194
AN ORDINANCE AMENDING CHAPTER 25, ARTICLE 2, DIVISION 4, SECTION 25-
2-44, OF THE HAWAI`I COUNTY CODE 1983 (2016 EDITION, AS AMENDED),
RELATED TO CONDITIONS ON CHANGE OF ZONE.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAI`I:
SECTION 1. Chapter 25, article 2, division 4, section 25-2-44, of the HaWai`i County
Code 1983 (2016 Edition, as amended), is amended to read as follows:
"Section 25-2-44. Conditions on change of zone.
(a) Within any ordinance for a change of zone, the council may impose conditions on
the applicant's use of the property subject to the change of zone provided that the
council finds that the conditions are:
(1) Necessary to prevent circumstances which may be adverse to the public
health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land use
proposed with respect to:
(A) Protection of the public from the potentially deleterious effects of the
proposed use, or
(B) Fulfillment of the need for public service demands created by the
proposed use.
(b) [Changes o-- a tem4ion e4l Requests to change or alter the conditions of any change
of zone ordinance shall be processed in the same manner as a zone change, unless
the council authorizes the changes or alterations to be made by the director. Unless
W-e-cifically authorized by the council extensions of time to satisfy conditions may
not be allowed by the director.
(_c,) A request for any change or alteration of conditions shall be submitted in writing to
the director, in lieu of the application required for an applicant -initiated change of
zone. The request shall be accompanied by a filing fee of $250.
d If the applicant fails to fulfill an conditions of the zone change within the specified
time limitations the director or council may initiate the process for enactment of an
ordinance reverting the affected propgback to its original zoning designation or a
more appropriate zoning designation in accordance with section 25-2-43."
SECTION 2. Material to be repeated is bracketed and stricken. New material is
underscored. In printing this ordinance, the brackets, bracketed and stricken material, and
underscoring need not be included.
SECTION 3. Severability. If any provision of this ordinance, or the application thereof
to any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance that can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 4. This ordinance shall take effect upon approval.
is
COUNCIL MEMBER., COUNTY OF HAWAPI
- , Hawai `i
Date of Introduction:
Date of 1 st Reading:
Date of 2nd Reading:
Effective Date:
REFESENCE COMM. 898
HAWAII FIRE DEPARTMENT. COUNTY OF HAWAII .
HILO, HAWAII 96720
DATE September 8, 2022
Memorandum
TO : PLANNING DEPARTMENT, COH
FROM CAPTAIN CLINTON BAYBAYAN, FIRE PREVENTION BRANCH
SUBJECT: COUNCIL BILL 194 COMMENTS
In regards to the above mentioned Bill, Fire Department Access and Water Supply shall comply
with Chapter 18 of the 2018 Hawaii State Fire Code and Chapter 26 of the Hawaii County Code.
For any questions please email Clinton.BaybayanLdhawaiicounty.,zov or call 808-323-4761.
Respectfully Submitted,
Clinton Baybayan
Fire Prevention Captain
Fire Prevention Branch
Hawaii Fire Department
Planning Daps.
Exhibit 2
Mori, Ashley
From: test <mvpvv@hawaii.rr.com>
Sent: Wednesday, August 24, 2022 1:03 PM
To: LPCtestimony; WPCtestimony
Cc: Van Pernis, Alexandra
Subject: BILL 194
WHY THE HAWAII COUNTY LEEWARD PLANNING COMMISSION (LPC) AND THE WINDWARD PLANNING COMMISSION
SHOULD SUPPRT COUNCIL BILL 194 PLACING AUTHORITY TO AMEND REZONING/SUBDIVISION ORDINANCES WITH THE
MAKER OF THE ORDINANCES, THE. COUNTY COUNCIL., (CC).
1. Only the County Council (CC) has the authority to make ordinances, such as rezoning ordinances, and only the CC has
the authority to modify or extend or delay an ordinance's effective dates.
2. There is no authority, statute or rule authorizing the County's Planning Director (PD) to grant or allow any extensions
or delays for completion of ordinance conditions or requirements, or to "resurrect" an expired ordinance, for any
reason. However, a provision for such extensions, unauthorized by the CC and not reviewed by the public, is often put
in ordinances DRAFTED BY THE PD, which purports to give him or her such unauthorized CC power, without notice to the
CC or the public. Thus in serving major developers, the PD usurps CC authority AND violates its own requirements„
while ignoring the public's need or additional conditions/infrastructure/affordable housing.
The PD and Commissions by rule are not supposed to act to facilitate a real estate sale.
3. The PD also puts in these ordinances for such extensions, a requirement that the PD will grant such extensions only if
necessitated "BY CONDITIONS BEYOND THE CONTROL OF THE APPLICANT". "Beyond the control" is legally snd
practically defined as such things as floods and labor strikes, etc. The PD admits that it has no rules on "beyond the
control" and requires no proof of that, and does not investigate that. Instead, the PD accepts and grants requests for
extensions of time without any "beyond the control" circumstances, without CC or public input, and without
consideration of the need for more conditions/infrastructure/affordable housing arising during the delays. The
applicant/developer often wants delay just to find and facilitate a buyer for the approved project, or because delay
brings a better profit, or the applicant didn't have the money or financing to develop when application was made. THIS
INVITES LITIGATION!
4. Applicant/Developers often apply for up-zoniing and subdivision with NO INTENTION to develop, and no financial
capability ability to do so. They apply only so that their conditions and contributions will be set on that early date. They
applicant developer may imply or misrepresents it's going to develop in the proposed ordinance's time frame (e.g. 5
years). 5 to 15 year free extensions/delays are later obtained from the PD, privately without CC or public input. There
are 10 thousand + residential units thus approved but not built. Their conditions,/infrastructur/affordable housing also
missing to the County and the public's damage.
5. Requiring the ordinance maker, here the CC, to consider and act on any amendments or extensions of an ordinance, is
modern land planning, from New York City to San Luis Obispo.
6. Public confidence in land planning would be greatly increased if the present broken system, which is tipped in the
developer's favor, is replaced with this modern and responsive system.
7. The possibilities of corruption would be reduced or eliminated.
8. A huge number of matters coming before the LPC are requests for lengthy delays, without any further impositions
arising from the lengthy delays. Very often, the delays are just to find a buyer and facilitate a real estate sale. The Bill
Planning Dep;.
Exhibit 3
would eliminate these matters, unclogging LPC agendas, and allowing the Commissions to concentrate on matters over
which they do have authority.
10. Even PD and the Assistant PD are not against this Bill. They have testified that they are "neutral". They may say
they don't always hand out free delays„ but this author has found no record of that. And also found no record of any
true "beyond the control •" reasons for delayl
Below are some examples where the PD first handed out 5 to 15 year exzbtentions and then the LPC was asked for for
further extensions. The total delays most often went for 15 too 25 years, and som ,e even longer. The author would be
happy to elaborate and/or give further examples.
A. Big condo project in Keauhou, off of Alii Drive and Kam III Road., first approved about 20.years, then got extensions
from the PD, and then came before the LPC asking for further extensions to 2025, with no new impositions. PD
recommended approval. SOLD after initial approval. Likely to be SOLD again with that buyer to seek further delays.
Though requested, not even a contemporary traffic study was agreed to.
B. Palamanui, a huge commercial and residential project in North Kona, which is the darling of many County officials. It
was supposed to build a bypass road from Mamalahoa Highway to Queen Kaahumanu Highway, intersecting with streets
along the way, by 2005. It obtained free3 extensions to 2025, and has now sold to Nan Inc. The result: big traffic jams
on Mamalahoa and Palani all the way into Kailua Kona town, with plenty accidents, including fatalities. Expect Naqn Inc
to ask for further free delays with only 2005 impositions.
C. Diamond Resorts an SMA, time share condo project on Alii Drive makai, south of the hotel and tennis courts, first
approved about 1998. After completing only a parking garage cement monstrosity, blighing Kailua town,the project was
abandoned and SOLD. After the PD's delays, a further request for delay to 2025 was requested without impositions
other than those of 1998 by their representative Mr. Fuke. The PD recommended approval. An updated traffic study
was requested of Mr. Fuke, but he refused. Thankfully, a "sunset" clause was part of the approval, with which the
applicant has not complied.
D. LLCs controlled by well known developers for a big commercial and residential condo project on Queen Kaahumanu
and Kuakini Highways near Lako Street. This is where Kona's worst traffic jams are concentrated, on Queen
Kaahumanu from Lako Street north into town and south to Kainaliu The jams started around 2005. This project would
have dumped about a thousand more cars into the jams, particularly during rush hours. The ordinance for this project
EXPIRED in 2005, although representative Mr. Fuke claimed he extended it thru the PD to 2015. In 2020 the ordinance
was "resurrected", and a request for an extension to 2025 made along with a reduction of the prior impositions. Mr.
Fuke adressed the traffic problems by presenting a traffic study that ignored the biggest traffic generator in the area,
Henry Street mauka and makai, and argued that congestion cold be taken care of by the State widening Queen
Kaahumanu and/or completing the Alii Drive relocation. For these and a myriad of other reasons, the "resurrected"
project received a negative recommendation from then PD Yee, and a UNANIMOUS LPC. But then, in what in the
undersigned's opinion is a stunning show of disrespect for the PD and the LPC, the negative recommendation was
turned to positive under the leadership of East Hawaii Council person Ms. Kierkewitz!Thjen the projrct was promptly
SOLD to Big Springs Development LLC. Expect them to ask for further delays.
The Big Island, and particularly West Hawaii, wants quality development, infrastructure and affordable housing on a
measurable and definite scale and schedule. The Big Island, and particularly West Hawaii, will always attract
developers. Needs must be net contemporaneously. I's a very taxpayer expensive 25 years behind because of this
archaic system, which badly damages the PEOPLE WHOM YOU REPRESENT. Please suppolrt Bill 194.
Mark Van Pernis
4. Applicant/developers often apply for up -zoning and subdivision wth no intention whatsoever to develop, and no
financial capability to do so. They apply so that the conditions and contributions other proposed development will get
set, ONLY BASED AT THE TIME APPLICATION IS MADE! The applicant/developer implies or misrepresents it's going to
develop in the time the ordinance will state (e.g. 5 years). But that can be knowing misrepresentation. Five to fifteen
year extensions/delays are then obtained from the PD, and then further extensions and delays are sought from the
• LPC. All these delays are obtained without public review and upgrading of the conditions/infrastructure/affordable
housing. There are ten to twenty thousand approved residential units unbuilt, many with affordable housing
components.
5. Requiring the ordinance maker, here the CC, to consider and act on any amendments or extension of an ordinance, is
modern land planning, from New York City to San Luis Obispo.
6. Public confidence in land planning would be greatly increased if the present broken system, which is tipped in the
applicant's developer's favor, is replaced with this modern and responsive system.
7. The possibilities of corruption would be reduced or eliminated.
8. A huge number of matters coming before the LPC are requests for time extensions, without any additional
conditions/infrastructure/affordab and housing arising because of the lengthy delays. Very often, the delays are just for
more time to find a buyer for the approved project and to facilitate a sale. The Commissions==================Bill
194 would eliminate these matters which clog the LPC agenda, and allow the Commissions to concentrate on the
matters for which they do have authority .
9. Certainty as to conditions, infrastructure and affordable housing for the County, developers, and the public would
come into being. Who would be against this bill, and why•?
Even the PD and Assistant PD are not against the bill, and have testified that they are. "neutral •". They may say they
don' t alway hand out free delays, but this author has found no record of that. And also found no record of any "beyond
the control" reasons for delay. Below are some recent examples. The author would be happy to elaborate and/or give
more examples.
A. Keauhou condo
B. Palamanui
delay after giving earlier extensions, all without examination contemporar4y of many County officials. It was supposed
to build a bypass street from Mamalaoa Highway to Queen Kaahumanu Highway, interconnecting with streets on the
way, by 2005, to alleviate traffic on Mamalahoa and traffic to its huge residential and commercial project. Palamanui
obtained delays and extensions to 2025. The result: huge traffic jams and accidents, including fatalities,on Mamalahoa
and Palani Road to Hina Lani and into town. Palamanui at the last hyering for further delay, promised that they would
build it out. But instead they SOLD to NAN, Inc. Expect Nan, Inc. to ask for further delay
C. Diamond Resorts, an SMA. A time share condo project, makai side of Alii Drive past the hotel and tennis courts. It
was approved about 1998, based on conditions then. After completing only the parking garage cement monstrosity on
the ground there, which blights the area, the project was SOLD. The buyer asked for a delay to 2025, with its
representative, Mr. Fuke, refusing any new infrastructure, not even a new traffic study on Alii Drive, which he said was
all that was required. The delay was recommended, but thankfully a "sunset" clause was added.
D._________________________________This commercial and residential project was to be located off of Kuakini
Highway and Queen Kaahumanu near Lako Street. Its ordinance expired in 2005, although its representative argued
expiration in 2015. The ordinance was ""resurrected", and an extension until 2025 sought. Then project would have
dumped about a thousand vehicles onto Queen K into the worst traffic jams in Kona, from Lako north and south.
Representative Fuke misrepresented, in the author's opinion, that the land would revert to inappropriate ag.zoning if
the project was not approved. He also presented a traffic study, which did not at all mention Henry Street, mauka and
makai, the biggest by far traffic generators into the traffic jams on Queen K, arguing that traffic would not be a problem.
It also represented that any traffic problem would be taken care of by the State adding a lane to Queen K and/or
building out the Alii Drive realignment by 2025. The project received a negative recommendation by then PD Yee and a
unanimous LPC. Later, in what this author thinks was a shocking display of disrespect for PD Yee and the LPC, under the
guidance of council person Kierkewitz, the negative reccomendation was changed to positive! Thereafter the project
was promptly SOLD to BIG Springs Development LLC. Expect them to ask for further delays.
West Hawaii wants quality development, infrastructure and affordable housing on a measurable and definite scale and
schedule. It's a very taxpayer expensive 25 years behind because of the developer friendly archaic system, which badly
damages the people of West Hawaii, whopm you represent. Please support Bill 194..
Mark Van Pernis