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HomeMy WebLinkAbout2022-10-20 Leeward Exh G (Item 4 Council Bill 194 PL-CCI-2022-000002) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT OCTOBER 20, 2022 A regularly advertised hearing on the COUNTY COUNCIL INITIATED BILL NO. 194 AMENDING CHAPTER 25 OF THE HAWAI`I COUNTY CODE, RELATING TO CONDITIONS ON CHANGE OF ZONE ACTIONS (PL-CCI-2022-000002) was called to order at 10:18 a.m. in the West Hawaii Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawaii, with Chairman Michael Vitousek presiding. COMMISSIONERS PRESENT: Michael Vitousek, Barbara DeFranco, Clement"CJ" Kanuha I11, and Mahina Paishon-Duarte ABSENT AND EXCUSED: Michael Dela Cruz and Zaheva Knowles ALSO PRESENT: Keyra Wong, Esq. (Counsel for the Commission), Jean Campbell, Esq. (Counsel for the Planning Department), Jeffrey Darrow (Deputy Planning Director), Maija Jackson (Planning Program Manager), Jessica Andrews (Planner), Clinton Mercado (Planner), Janice Hata(Zoom host), and Noriko Sauer (Commission Secretary) INITIATOR: COUNTY COUNCIL (BILL NO. 194) (PL-CCI-2022-000002) 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. VITOUSEK: Okay, next item under New Business, the initiator is the County Council, Bill No. 194, PL-CCI-2022-000002, 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. The Windward Planning Commission considered this bill on October 161' October 6 h, sorry. Now, we'll have a staff presentation by Jessica Andrews. ANDREWS: Chair, is there public testimony to address first? VITOUSEK: Well, according to our agenda item, we are going to do public testimony after a presentation by Council. ANDREWS: Thank you. Okay. My name is Jessica Andrews, and I'm here to introduce, or to present, Bill 194 relating to conditions on change of zone actions. 1 EXHIBIT G The Hawaii County Council has introduced Bill No. 194, which seeks to amend Chapter 25, the Zoning Code, 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 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. Bill 194 seeks to amend Article 2, Division 4, of Chapter 25, Conditions on change of zone as follows: Section 25-2-44(B) paraphrasing the changes the changes proposed for this section include modifying language to clarify the requests to change or alter conditions of any change of zone ordinance shall be processed in the same manner as a new zone change. And furthermore, new proposed language indicates that unless, 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. And here you see the strikeouts, or language that is struck out, is proposed to be removed, and language that is underlined is proposed to be added. So, to summarize, striking out"Changes or alterations of' and adding "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. New language is "Unless specifically authorized by the Council, extensions of time to satisfy conditions may not be allowed by the Director. And striking out the last section, which addressed the filing fee, and that will actually be created as a new section, as you'll see in this next section. So, the section 25-2-44(C), changes in this, for this section include the deletion of all current language on the failure to fulfill change of zone conditions within specified time limitations and the addition of submittal instructions for a change of zone amendment, which is currently found in the previous section; so that part about the filing fee is going to replace this section here, which is entirely deleted. And the new language is "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." This is the same language; it's just in a new location. And 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 effective property back to its original zoning designation or a more appropriate zoning designation in accordance with Section 25-2-43. And the exact language is as follows: If the applicant fails to fulfill any 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 effective property back to its original zoning designation or a more appropriate zoning designation in accordance with Section 25-2-43. 2 EXHIBIT G Finally, the Director's recommendation, the Planning Director recommends that the Planning Commission send a favorable recommendation of Bill 194 to the County Council. And with that, I'll hand the Chair, the floor back to the Chair. VITOUSEK: Mahalo. And we have with us Councilmember Holeka Inaba. Step forward. Right on. Do you swear or affirm to tell the truth on the matter before the Planning Commission? INABA: I do. VITOUSEK: Mahalo. Please proceed with your presentation. INABA: Aloha kakahiaka, Chair Vitousek, Vice Chair DeFranco, Members of the Leeward Planning Commission. We are here today discussing Bill 194, which I introduced. As part of the process, we hear it first in the Planning Committee of the County Council, and then it's referred to both Planning Commissions, or to the Department, Planning Commissions, and then back to us, so we can get your folks' input on this legislation, any legislation affecting this part of the Code. So, two weeks ago I presented the same bill to the Windward Planning Commission who, as you know, forwarded a positive recommendation on the matter. And what we have here before us is really this idea of increasing transparency and accountability transparency perhaps on the County side, accountability on applicants and developers who come before you folks and the County Council, seeking rezoning. So oftentimes for smaller rezoning projects, we are going to see a five-year time frame for subdivision approval or completion of all conditions of approval within a rezoning ordinance. They could be longer depending if it's a big project. But what we see right now—and this is not a practice just of the current Planning Department but one that goes back 40 years—is insertion of language within each rezoning bill that grants the authority to the Planning Director to grant an administrative extension of time, and that's pending, you know, whether it's unforeseen circumstances, there is a criteria within the Department that the Department uses to that whether or not they want to grant the administrative extension. What is being attempted here is to not allow that language to be inserted into bills anymore. If an applicant comes before you folks and before the Council and is agreeing to complete conditions within a certain amount of time, we look back at the ordinance, we should be able to know if it says five years from today, that five years from today, conditions are complete. We currently don't get reports, and it's not required that reports be submitted to you folks, to the Council, letting us know which projects received administrative extensions, but those extensions are granted. And it kind of puts us in a funky place, when you look at ordinances, whether they are technically stale—and I think we are going to have a conversation about stale ordinances—or if the Department did in fact grant. We are currently having internal communication with Corporation Counsel as well, because in some instances we've found that it's been the practice that administrative extensions are being granted after the five-year period has already actually come to an end. So, it's really to clean things up. And I've had good conversation with Planning staff, Corporation Counsel. 3 EXHIBIT G I also want to present the opposite or, you know, the I'm devil's advocate on this bill, and it's for those, for example, of a small family who comes for a rezoning, they are granted five years—and Chair Vitousek actually just kind of walk this scenario, we walked it through together outside that the person who comes for the rezoning passes away within the first two years and the project isn't able to move forward, conditions aren't met; in a situation like that, it would make sense, you know, or it would be nice I would say, to have that option of an administrative extension that the Director alone could grant. The question is where do we draw the line and who do we draw lines for and in being fair. The point of the bill is to know, like I said, if it's five years or if we know it's going to take longer than five years, if it's going to be seven years because things move so slowly sometimes here at the county, let's give them seven years, but when we look back at a rezoning ordinance in our County records, we can know for sure when something becomes stale. And I don't want to use the word "expired"because Corporation Counsel and I also had this discussion where, say, somebody does get the rezoning, we approve it, they've completed some of the conditions of approval, and they are doing certain activities now that wouldn't allow them to go back into Ag, but they have technically lapsed because they didn't meet all the conditions, which allow them to keep or continue with, let's say, a Commercial zoning, you are in this limbo area the Department can maybe speak a little bit more to that. So, it's just, it's a tricky, tricky topic I would say. I've also provided within the file today proposed language that might clarify the intention. You folks wouldn't amend the bill but could make an appropriate motion, if you folks like that bill, I mean that wording more so that when it comes back to us, we have a better understanding of the conversation that has gone on here. But I'm happy to answer any questions, and again, it's really just a matter of transparency and accountability and the fact that we don't want, not everyone but some people come here for rezoning simply for increased value on their land and they have no intention to carry out conditions of approval, and when the five-year lapses, they come back to the administration, and currently we have no oversight and no knowledge at all of who gets extensions and for how long and for what reason. VIOTUSEK: Mahalo. INABA: Mahalo. VITOUSEK: Are there any questions from Commissioners to staff or the applicant? Okay KANUHA: I just want to say I know this is well needed I believe. There's been a discussion between all of us for certain things with SMA extensions that have been coming up for getting time extension on things that you haven't fulfilled in 20 years in the past, and there needs to be some accountability. So, you know, thank you for bringing this morning. VITOUSEK: Just to clarify also that this relates to zoning changes KANUHA: Yeah, this is zoning 4 EXHIBIT G VITOUSEK: not, not SMA, but KANUHA: in the grand scheme of things. VITOUSEK: Yep. Okay, any other questions from Commissioners? Okay, at this time I will have public testimony, do public testimony, and if there are any questions that come up after that, we can have you come back up, Councilmember Inaba, and have that discussion. Okay, first up is Mark Van Pernis. Would you please raise your hand? Do you swear or affirm to tell the truth on the matter before the Planning Commission? VAN PERNIS: Yes, I do. VITOUSEK: Okay,please proceed with your testimony on Agenda Item 4. VAN PERNIS: After extensive research, why, Bill 194 cracks possible illegalities, makes delays transparent, solicits public input, and places a decision on changing time and conditions in ordinance on the maker of the ordinance, being the County Council. This is modern land planning and best serves the residents of West Hawaii. I submitted written testimony referring to all those things, and I mentioned that I could give examples of the problems created by recent applications; I could cite those applications. I'm prepared to answer any questions in that regard. It has been reported falsely, I think. The recording and according to the work that's going back all the way to Planning Directors, Mr. Fuke, that only five-year extensions have been handed out for free. But, you know, from your agendas at that time truly go 5-, 15-, 25-, 30-, 40-year extensions. Bill 194 will help unclog your agendas, those unreasonable requests, and also help to eliminate situations like every single application for delay made by Mr. Fuke as a land planning consultant has been granted and without any showing of conditions beyond the control of the applicants, as the ordinance requires. So, I hope you'll approve 194 and support it. Thank you. VITOUSEK: Mahalo. Next, we have Colin Keola Childs. [Seeing Mr. Childs not in the audience] Since he stepped out, I'll proceed with BLANCETT-MADDOCK: It's hard to read; it's Blancett-Maddock. VITOUSEK: Please come on up. BLANCETT-MADDOCK: That's all right, I got married 36 years ago, and I got saddled with that name. Aloha. VITOUSEK: Okay. Would you please state your name and the town that you live in for the record? BLANCETT-MADDOCK: Aloha. I live in Kona, off Lako. VITOUSEK: And then the name again. 5 EXHIBIT G BLANCETT-MADDOCK: David Blancett-Maddock. VITOUSEK: Mahalo. Please raise your right hand. Do you swear or affirm to tell the truth on the matter before the Planning Commission? BLANCETT-MADDOCK: I do. VITOUSEK: Okay,please proceed with your testimony. BLANCETT-MADDOCK: Well, two things. Imy wife dragged me out here today, and I'm running a cold, so please bear with me but I not only support the councilman's changes to this statute, but I also will point out some additional things that I hadn't heard yet since I wasn't here for the whole hearing. The current administration has taken the position that if a zoning extension is not in front of the Council, then it's not subject to a contested hearing; that's very important to us in the public because some of these have lasted three, four decades, and zoning has changed considerably over the period of time these happen. And in addition,not bringing it into the, this is, this leaves it in the shadows, if you understand what I'm saying. And for example, if you take a look—I was down the other day at the Judd Trail. The Judd Trail is an example of our failure, our failure to the people of this island and the people of Hawaii generally. The Judd Trail is a trail that was built to go all the way from here to Hilo, and it was authorized at a time and began work, not finished, at the time when the queen's edict went in that said that that property belonged to the State. And it isn't, it isn't the trail that belongs to the State; it's the land. So, that trail, even if they build over it, still belongs to the State. And even in that position, they've talked about streamlining, which is where we got these concepts of moving things over to the administration to approve. It was streamlining, and they were warned that that's open to a lot of problems. It's problematic on its very nature because of the way that it takes it out of the realm of the legislation, legislative branch. So what happened in Judd Trail is there's 75 feet remaining of that trail at the very—go down there, go down and be ashamed, I was ashamedseventy-five feet of that trail and the magnificent building of a double-wall trail that was a road, and the rest of it is owned by these, they call them mini farms or something, or they have a word for it that's very chep- okay, but, cheap, but that's what's left of it. And the bonds are gone. The bonds were negotiated back by the State down from 225,000 dollars to eventually 50,000 dollars. It was in, supposed to be in the bank. I don't think there's any money left. And now as taxpayers, if you want to restore those trails, we are going to pay for them, but the land wasn't even set aside, so now it's going to have to go somewhere it wasn't supposed to be in the first place. That's a shameful thing. It's shameful. Now, as far as the lapsing of these things go, if it's not afford—first of all, we are not even just talking about instances where they are asking for this because they are, they are allowed a 10-year period or something to do it; they let it lapse, okay, they don't get anywhere down the road, they lapse, and it's called land banking in anywhere else that you go in the world. It's called land banking, speculating with the Hawaiian people's land. It's wrong. 6 EXHIBIT G So, I can't support the Councilman enough on this. And what's happening right now is embarrassing to all of us. [A timer bell rings.] We are losing our trails VITOUSEK: That was three minutes; I'll ask you to summarize briefly for 30 seconds. BLANCETT-MADDOCK: Summarize briefly. The importance to this bill can't be underestimated, okay, the importance to the protection of the people of Hawaii. And I'm talking about the roaming rights. There is no, they say there's, let me put this in, they say there are no roaming rights in Hawaii. But there are. These trails are protected forever. That is the only remaining roaming right of the Hawaiian. So, when we look at these things, the zoning changes, in summary, the zoning changes, the conditions change, and what do they do over this period? They go through these processes, and each time they come in, they deteriorate what the original proposal even was. You'll see them changed into vacation rentals now. It wasn't even anticipated 40 years ago when they put this application in. So, in closing, I can't support this enough. And I have to disagree with the Councilman on the way he gave theI'm a lawyer, I'm a lawyer, should I disclose that? Am I supposed to disclose it? I disagree with Councilman's assessment of what lapsing means, and we will talk about that, too, and you'll hear me at the next hearing. Thank you very much. VITOUSEK: Mahalo. Appreciate your time for coming out. Next is Colin Keola Childs. Mahalo. Please state your name and town you live in. CHILDS: I'm Colin Keola Childs. I live near Holualoa in the Pua`a Wai`aha Ahupua`a. VITOUSEK: Mahalo. Please raise your right hand. Do you swear or affirm to tell the truth on the matter before the Planning Commission? CHILDS: I do. VITOUSEK: Mahalo, please proceed. CHILDS: I would like to add a few cautionary perspectives in your treatment of and recommendations on this bill. I do agree that there should be some tightening-up of practices and some language. I would like to relay a concern that, for example, using a five-year basis, which has been the tradition of the period for performance, if that is five years or anything close to it becomes a Council-only decision, you are going to in many cases prevent many well-intentioned and able developers from executing their plans because of the exigencies that come up, whether it's a disease wave or a tsunami or other factors, natural disasters, the stake in historic preservation staffing problems that prevent applications for the dutiful proper complete work to be done, finding the archaeologist to even prepare that. It took me five years to go through it for a driveway, shared driveway with a residence, to go from hiring the archaeologist through SHPD reviews in the,just in the past five years. So, if Ifortunately, we and our neighbors didn't need to have a zoning approval to build a shared driveway, but that took five years. And even if SHPD beefs up their staff, then there's other environmental practical issues that come up. You can have responsible developers that cannot complete proper conditions above board, and if they, within 7 EXHIBIT G that time frame given, what happens out here in the middle of the Pacific with all the factors that are involved, if they get the three to four years, they basically, based on this proposal, do not have zoning. Their financial underwriters that are proposing to prepare more extensive plans, to provide site work, they are saying, hey, you are going, got to go back to the well; you don't have, there is no custom, there is no culture that you are going to be approved, you go back into the firestorm again, we are not going to loan you the money you need to carry on because we don't think, we don't know you are going to get it approved. Right now, there is a reasonable expectation; if you follow and play it by certain rules, the Department, the Director will generally, generally provide us a period to go further. So, I would like to caution you on deciding that if you want to throw entirely into the Council and if it's a short time frame, you are actually going to be counterproductive and add more problems for more paperwork to push it. Also, if you extend it to 10 years, if the Council says, well, you can have 10 years instead of five, you are not getting anything better than what you have today with five years that the Director can decide versus getting the 10 years. I would like to recommend in closing that you have, put in in your practice, in the bills, to eliminate the problem of post-expirations granting being granted by the administration after the five years, that the bills be amended to put in specific dates, but five years from the date of, from the effective date of this rezoning ordinance is the limit for—or whatever number of years you may choose—is the limit for administrative extension. It may be that the administrative extensions ought to be shorter like—I'll pick just for sake of conversation not as a recommendation three years, and so that after that becomes six years, then Council decides, but they have to perform reasonably within a shorter period of time of accountability, and maybe the Director provides a report to Council of every extension granted with its reasons. And that might actually be more productive in keeping a shorter string for that and still giving Council a review potential in less than 10 years. Thank you. VITOUSEK: Mahalo. And are there any Zoom testifiers? HATA: Yes, we have Clare ready to give testimony on this item. Clare, you have three minutes, so if you could unmute yourself and turn on your camera, that would be great. Clare, are you there? LOPRINZL Yes, I'm here. Can you hear me? HATA: Yes, we can hear you. LOPRINZL Okay. First of all, I want to apologize for that act- - - I'm just, there's a lot of emotion behind when I testify because I know the effect that it has on our babies, in the 51 years I've been helping babies to be born, so, and the families. So, I really want to support the bill that Holeka did. He is an amazing man, young man, and I think he sees things on both sides. I think that this total transparency is what we are asking for, because if permits have been extended, I mean, that have, have run out already, then they need, and they were stopped, for example, because there's, there's not the roadways, there's not that, the 8 EXHIBIT G infrastructures that we need in place, then they need to be in place, and the assessments of a place, especially of Ali`i Drive, of the large burials, the bones and archaeological sites need to be respected because it's a, it's aI was up in the military working on this issue because I'm a cultural advisor to them, too, and MATO, listen to a whole, I mean a whole talk - - -PowerPoint on MATO, and I'm very aware of it because I worked with burial rights with Native Americans in the 80's, but it's a federal law that these, these laws are - - - state law, there's HRS, I think it's 6E, HRS 6E, there's laws already in place. And so we just need to make sure that we have transparency, and that we don't hurt—for me there's too many native people without being able to have land, being crammed into Hawaiian Homelands, the lots getting smaller, and they are on the streets, and it affects drugs and alcohol and all kinds of dysfunction within the families, and, you know, these are, these are our people. So, I just wanted to thank Holeka and the Commission forI think that it's a well-balanced bill, and I think that it's something that should go through and cause and be end result of more harmony between all of us, because for sure you don't want to divide - - -we want all of us to be living in harmony - - -. So, thank you for your time. VITOUSEK: Mahalo. Thank you for your testimony. LOPRINZL Okay, have a great day, you guys. VIOTUSEK: You, too. Okay. Is there anyone else on Zoom? HATA: No public testifiers at this time. VITOUSEK: Okay. Any, and no one else in person? [None] Okay. With that, can we have a motion to close public testimony for this agenda item? KANUHA: Motion to close. VITOUSEK: Motion to close DEFRANCO: Second. VIOTUSEK: by Commissioner Kanuha, second by Vice Chair DeFranco. All those in favor? COMMISSIONERS: Aye. VITOUSEK: Any opposed? [None]Motion carries. Councilmember Inaba, would you mind stepping back up? Is there anything that you would add following public testimony? INABA: I think the points Mr. Childs brought up are valid points, like we talked about standard practice being five years right now. I think we as a planning, as the County, as the Planning Department, really need to help guide, because if some applicants come forth and don't really understand the scope of work that it takes to meet the conditions, I do hope that the Department plan-provides guidance, and if they know it's going to take seven years, then put seven years into the rezoning bill. I don't want it to be five or 10, like Mr. Childs said,just, because, again, it wouldn't accomplish what we are trying to get here at. What we are trying to get here at is a 9 EXHIBIT G reasonable amount of time and come to this process when you are ready to commit to completing conditions. If you are not ready and you know that the Department is recommending seven years or it's going to take seven years, then don't come here and waste your time and waste our time; only come when you are ready and you understand and you know what it's going to take. Not everyone knows what it's going to take, though, is my point. So, if somebody does need seven, then give them seven, but we are not going to—it's irresponsible to just go and give everybody 10 now instead of five. So, I don't, I don't support that idea that everybody would get 10 now. It's look at the project, give a reasonable amount of time. Technically, an applicant is committing to meet whatever time frame is in as in the bill. The fact that some people bank on getting an administrative extension later for whatever reason they are going to tell the Department, not sure, not sure that's in the best interest of our community. And, let's see KANUHA: [Inaudible] VITOUSEK: Commissioner Kanuha. INABA: I think that's all I'll say right now. I can answer any questions you folks may have. DEFRANCO: Mike, I have a question KANUHA: Mr. Childs brought up a great point that, you know, I thought about after, which more or less banking, but if we do have kind of what you guys discussed, if there's an illness or something and they do have approval, is there going to be a part of their, is there language that is able to help people with the right interest on their rezone, you know what I mean? It's hard to speculate what is what because you can say,just like you said, you can say whatever you want to say to be able to get that. But, you know, with people good-hearted and true-natured, you know, that are here for the community for the better, the betterment, I would say. [Mr. Van Pernis from the audience asked for the volume to be higher.] Can you hear me better? VAN PERNIS [in the audience]: Now. VITOUSEK: Mine is pretty loud. DEFRANCO: Yes. INABA: Commissioner Kanuha, I'd like to respond, if I may. KANUHA: Yes. INABA: And I, of course, we want to help our local families, and we don't want to put them in a harder place if they experience hard times. But again, where do we draw the line and what is fair for one is fair for all? So, it just calls into question our current practices that we have no idea, and even if we were to implement a reporting process that, on a quarterly basis for example, the Council receives a report from the Planning Department indicating who received the administrative extensions and for what, it's after the fact. There's no, it's a decision by the Planning Director at the Planning Director's discretion versus this whole process that we've all 10 EXHIBIT G gone through. Sometimes it's annoying, I would say, when we get applicants come through for another five years, but they are coming through the process, and it's at that time that the Commission and the Council can recommend changes or removal of conditions; we have a process. If the Director grants the extension, there's no way, we don't amend conditions in the rezone ordinance; it happens offline between the Department and the applicant, and where is the transparency in that? And this, again, is no attack on the current Planning Department because this has just been practice for four decades. VIOTUSEK: Vice Chair DeFranco? DEFRANCO: I'm just wondering. It isn't like—when they ask for an extension, doesn't the Planning Director have a criteria that has to be met before he grants the extension? Isn't there a process that's already in place? VITOUSEK: Perhaps DEFRANCO: And ask those questions? VITOUSEK: Perhaps Deputy Director Darrow could answer the question DEFRANCO: Maybe, maybe you can speak to that. VITOUSEK: on the Department's procedures. DARROW: Sure. As mentioned, this practice has been in place for a number of decades. The authority granted to the Planning Director is given from the Council to make this administrative time extension decision. The decision for the Director has to meet certain criteria, which is listed in the condition. I, the Director does not have the ability to amend any conditions on his own; the only thing he is allowed to do is the authority given to him through the Council in the ordinance, which is to look at if the applicant has met these criteria and to grant him a time extension no more than the original time granted. So, that means there is flexibility. In the past I've seen cases where certain Planning Directors only grant one year, and they say I will grant you one year, I want to see if you do any changes to your project, then they will come back in if they did, and he will grant the additional time. There have been times where somebody comes in and their project is completely changing, and we'll say we are not going to grant an administrative time extension, you need to go back to Commission and Council because your project has completely changed. And so, the way that we look at this isn't so much the, that we have this power that we can grant this additional time; it's, we look at it as a check-and-balance that this is, you know, yes, the time frame originally granted was five years, but there was a condition granted looking at this project at a 10-year time frame or the possibility of 10 years if they met these criteria. So, we take that very seriously. There's a number of—in fact, we were just looking at an application, or a time extension letter and an administrative time extension letter that was granted to an applicant, and we looked at it, we addressed each criteria, and we had said please be aware of this condition that since this time has passed, your fair share is going to increase through the HCPI the Honolulu Price Consumer [sic] Index. So, we take, again, we take that seriously. 11 EXHIBIT G There was a time in the past where we would cc the Commission and Council on all our letters on the time extension request, on the annual progress report responses, then it, I think it just got to be too much where they asked us to stop doing that. But there could be this possibility, as mentioned, of a report, which isn't so, you know, constant flow of sometimes just minimal response letters. But the way that the condition is worded now, it still gives the ability for the Council to not grant it or to grant an administrative, the ability for the Planning Director to grant an administrative time extension. DEFRANCO: Right, so just to improve my clarity, so you already are under the purview of the County Council where this decision comes from, right? DARROW: That's the authority granted to the Director. DEFRANCO: To do that. DARROW: Yes. DEFRANCO: And, you know, I have to credit Mr. Van Pernis because in previous times he always brought up the idea of putting in sunset clauses and things, so we don't get to this place. I guess I'm just wondering if this is already in place. It seems like creating more limitations isn't about transparency. I mean it concerns me to place five years on someone, even though, you know, if this is investments, and how things go, whether it be pandemics or the global recessions or whatever is happening, it's huge, and to try to say, okay, five years and then that's it, unless, unless, you know. And that's already happening,you know, you put a time limit when you give these things, you put this criteria on them when you give them. But I think one piece that's being left out, which you said sort of fell through the cracks is nobody is getting those reports, so we, nobody knows what's stale, what's being left stale, what's being kept current. I'm just wondering DARROW: If, yeah, if I could just real quickly respond to that. There's been statements made, oh, some people are granted 10-, 20-, 30-year time extension. That's incorrect. The time extension granted would be the administrative time not to exceed what was originally granted. What happens is when—we'll just use an example—an ordinance is passed, it has a five-year time to complete construction with an administrative time extension up to five years, once that 10 years passes, there is nothing that can be done on that project; if they come in for a building permit, a grading permit, anything, it will not pass. So, it basically just sits. Unfortunately, we don't have a mechanism. There are thousands of permits that are becoming inactive throughout our files that we don't have a process currently that we can say, okay, there's all these guys are coming up on their time frame, we need to go do something. We have so much going on as time goes on currently. But again, that's something that would be we've looked at in the past trying to implement. But the fact is is that what happens is this stays stale for—it could be like the one we saw today, 1998, they got an administrative time extension to 2008, it sat stale for 14 years. Now a new applicant, new buyer has it, they are coming in, but nobody could have done anything after 2008 regardless; they, we would, they would have been told the same thing, you have to go back to Commission, you have to go back to Council to re- either amend the time or to re-initiate a new 12 EXHIBIT G change of zone, whatever they decide. Anyway, that's I, you know, we work hard on those, so I just want to be clear that this, it's unfortunate that it seems like the Planning Department is just handing these out like, I don't know,just like Halloween candy or something, that's not the case. And again, there is, once that administrative time extension ends, that project cannot move forward. Thank you. VITOUSEK: And many of the cases of extreme delays in these zoning ordinances that have expired have received additional time from these administrative plan appr- administrative extensions, as well as going back to the Commission and the Council for additional extensions. So, it's not just the Planning Department that is creating these extensions, they've happened over different administrations, different Councils. And I think, to me, a bigger part of how we deal with that is the second part of the requested amendments, which basically indicates that if there's a change in the conditions, one of those conditions being the time it takes to complete any of those conditions, the Planning Director or Council may initiate, may initiate proceedings to revoke the zoning or recommend a more appropriate zoning. And, to me, that is what is perpetuating this cycle of stale ordinances with zoning sitting out there where the zoning is perpetuated but the conditions have expired, and now what do we do, you know. There's not, there's not a clear indication of what should be done then on our side, with the Council side. I think clarifying those to indicate that, you know, what the procedures must be, they must reapply and examine the existing environmental conditions to recondition that development based on current standards, that kind of clarification in the zoning code would be extremely beneficial, rather than the language of ,'may seek rezoning,"which may or may not happen and may or may not be appropriate. INABA: Chair, if I may respond? VITOUSEK: Sure. INABE: I don't I agree with that recommendation. Unfortunately, right now, like Deputy Darrow said, we don't have a way to show what is coming up on expiration, so there's no mechanism for us to even try and apply those recommendations, because we don't know what applications are becoming stale, about to become stale, are stale already. And I want to go back to Vice Chair DeFranco's question. So I can just read the language that is typically inserted into the rezoning bills, and it reads, "An initial extension of time for the performance of conditions within the ordinance may be granted by the Planning Director upon the following circumstances: 1. The non-performance is the result of conditions that could not have been foreseen or are beyond the control of the applicant and that are not the result of their fault or negligence; that the extension will not be contrary to the General Plan or Zoning Code; would not be contrary to the original reasons for the granting of the change of zone; that it wouldn't be for a period longer than the original period granted; and if an additional time extension past that is required, then they come back to the process." So, yes, technically, currently, the County Council approves ordinances, approves bills that become ordinance with that language in it, so we are authorizing the Director's power to do that. The question is, are we okay with that? And if we are not okay with it, is it my duty or the duty of the Council at every single application to have to make a motion to remove that condition? Because it's always put in, doesn't matter what, it's 13 EXHIBIT G always put in. So, we have, is it our job to have to try and take it out every single time and have a discussion on that or are we going to be clear? And another thing about administrative extension. So, Deputy Darrow said in some cases a one-year extension is given, maybe not the full additional five years, pending what happens in that first year. That's, that's all the applicants should be getting. Doesn't matter what happens after the first year, the ordinance only allows for one administrative extension. So, I don't know what has been going on, and that's the point here. If they gave one year, they cannot give another year or another four years after that. Doesn't matter what has been agreed upon as a result of that first-year administrative extension, the ordinance only allows for one administrative extension. VITOUSEK: If I might ask that our Commission make a motion so that we can discuss this without losing the fact-finding period, but we can actually discuss our thoughts and perspectives on this. I think I, you know, welcome Councilmember Inaba to stay up in case there are further questions and information as needed, but if we could make a motion. And again,just to clarify, the motion that we are discussing, the agenda item that we are discussing is the language that was submitted to us and reviewed by the Planning Director that recommends that unless specifically authorized by the Council, extension of time to satisfy conditions may not be allowed by the Director. So that is the language that that we are reviewing today. Would anybody like to make a motion? PAISHON-DUARTE: So move. VITOUSEK: Okay, a motion to forward a favorable recommendation? PAISHON-DUARTE: Oh, I'm sorry, I thought we are having a discussion. VITOUSEK: Well, for us we have to make a motion on the item before we can have our open discussion. PAISHON-DUARTE: I'd like to make a motion to make a favorable um VITOUSEK: Recommendation? PAISHON-DUARTE: recommendation. VITOUSEK: Mahalo. Is there a second? KANUHA: I'll second. VITOUSEK: Okay. Motion by Commissioner Paishon-Duarte, second by Commissioner Kanuha. We can open it up for discussion at this point. And my answer to Councilmember Inaba's question of should it be the Council's job to review it every time, and I think it is. I think that every development, every permit, is unique, it's in a different area, they all have a unique set of environmental concerns, cultural concerns, community concerns, and I don't think there's one formula that we can apply to adequately take into account all of that. And so that's why there's so 14 EXHIBIT G much discretion that's left up to the County Council, to the Planning Commission, to work through these on a case-by-case basis to figure out what is appropriate for this project, for this area, for this community. And I think there are many, many opportunities, many, many projects where it would not be appropriate to have a blanket administrative time extension by the Planning Department, but I believe that there are instances where it would be beneficial to a small project, to a small community, that we don't want to add the additional burden of going back to Planning Commission, to Planning Committee, to first reading of Planning- first reading of County Council, second reading of County Council, of adding that additional months, the additional time, the thousands and thousands of dollars of planning consultant to go through that. Adding time and money to the process adds to the expense of living in Hawaii that trickles down to the home buyer. That makes property more expensive. So, you know, in the event of a project like an affordable housing community that is being sued by the neighbor, perhaps in a rich luxury subdivision, that don't want their property values to go down, and they have a delay because of that lawsuit, that affordable housing community then has to come back to go through that full process. It just adds time, it adds money, it makes it less affordable. Now, in other situations it's very applicable, and I think rather than extending those timelines saying, yeah, the process is difficult but they could have additional time to complete it, I think we want tighter timelines and more information on how every step of the process will be met, and if they can't meet that in order to do a kind of development project, then they don't belong here. And so I would advocate for preserving the Council's discretion in deciding which project you think is a good project that you want to give the best opportunity to complete, that has the best community benefit, that you can say, yeah, we want this to move forward and we are willing to give administrative time extension to save you time and money so that you can complete this community-benefit project. And in other examples you look at it and say, you know, you are just trying to make money off of our community and there may be some benefit for it, so we want you to proceed on an extremely tight timeline, and if you can't do it, then you can't do it, and it's done, and you start from square one if you can't do it. So personally, I feel like the language as exists reflects the current process where the Council has that authority, and I think that we can all do a better job of making sure that projects are held to a higher standard, and projects that deserve an administrative time extension get it,projects that don't don't. And that comes from all of our review of these on a case-by-case basis. So, to me, preserving that discretion is important. And I agree with the language as written, but I don't agree with the recommended changes where there is no opportunity for an administrative time extension under any circumstances. DEFRANCO: Is this for our discussion time? VITOUSEK: This is discussion, yeah. DEFRANCO: Yeah, so I agree with you, Mike, I do. I think that, you know, we, well-crafted, good that we are having this discussion, good that we are bringing it all up, and that's why, you know, we've been drilled on the sunset clauses in looking at how they can take advantage, you know, nobody wants that. We have to be very careful of that and very diligent of that. And that's why we have all of these different processes to look at and to review it and to talk about it individually because each of them are different, so. VITOUSEK: Mahalo. 15 EXHIBIT G KANUHA: [Inaudible] language in there? VITOUSEK: Please use your microphone. KANUHA: Would you like to add a conditional language in there? VITOUSEK: No, I mean, like I said, I think that the language that was initially proposed is adequate where it clarifies that the County Council has that authority to delegate that authority or not, you know. They can keep it for themself if they think the project merits that, which I agree with, or if, you know, they exercise their discretion to say that we think this project is so beneficial for the community, we want to give it every opportunity to be successful that they can then decide to give that administrative time extension. So, as it's written and as we are reviewing it, I agree with it. KANUHA: Yeah, okay. VITOUSEK: I would, I would take it a step further; perhaps, the better opportunity for that would be in the code revision, which is apparently ongoing in actually clarifying what happens when these ordinances go stale, rather than the language as proposed about, that it may seek initiation of a change of zone. PAISHON-DUARTE: Chair,just— VITOUSEK: Yes. PAISHON-DUARTE: —for my understanding. Are you proposing that we have a possible code revision discussion at this point or, or how, yeah, timeline on that? VITOUSEK: I think personally that with the code revisions on a large scale happening, which, you know, we attended the meeting yesterday, the stated purpose is to do a comprehensive overhaul of the code in order to eliminate the piecemeal effect from the changes that have happened over the years. So, my concern is that, you know, with a lot of the piecemeal modifications to it happening right before we do the overall code, I think we have that discussion with the overall overhaul of the zoning codes, which are going ahead now. Now, this one, because it doesn't substantially change the process, it just clarifies the authority, I don't have a problem with this at all. INABA: So, if I may respond VITOUSEK: Sure. INABE: —and this is what the Windward Planning Commission had the same bill before them, they forwarded a positive recommendation without language change but with the intention that the Director may not, or that language can't be added that grants the Planning Director that authority. So, that's what they did. You folks are going to do what you are going to do. When it comes to 16 EXHIBIT G the language, though, about discretion, I guess the question for the Commission right now is every single time somebody comes for a rezoning, you folks are okay with the language automatically being added in that grants the Planning Director the authority for an administrative extension. And if so, that will assume that the Commission or a Commissioner or a Councilmember will have to make a motion to have that authority stripped out of every bill every single time it comes through the process. VITOUSEK: Response, Deputy Director Darrow? DARROW: Yeah. So, this, the same process would occur also at the Commissions, so if an application or a set of conditions comes to the Planning Commission, before it comes to the Council, they can amend the conditions, they can remove the conditions, before they forward up whatever that particular bill may be. That currently can happen at this time. I did want to bring up something that we might not have remembered or maybe some of us weren't here at that time, but back in 2019—some of the members in the audience were present— this was a hot topic, time extensions, not only administrative time extensions but time extensions coming before the Commissions and the Council. Same concerns, you know, these time extensions just keep coming in and coming in and coming in, what can we do about it. And so, I do have my notes from that, and I just like to briefly just summarize the options that we had set back then just so that that's something else we can take into consideration, that this is what we were looking at back then. It was funny because we had different, on the east side and the west side, there were different thoughts on the matter. The east side was looking as if, regarding ordinances, if you are going to allow the ordinance to be approved the zoning, then it must be appropriate, and therefore, there should be no time on the ordinance, whereas on the west side they wanted to make very clear timelines on the ordinance. And so, there was that that dynamic going on. But when it came to options regarding timing, they were saying to try to, if it was a larger project, to utilize phasing where this phase had a time, this phase, instead of a 20-year project or something, it would phase out; there would be, again, no administrative time extension but add reasonable time to complete, that was one of the options; do not grant an administrative time extension unless there has been progress on the projects, such as securing plan approval, the building permits, or beginning construction, and that could be a definition of substantial commencement; lastly, the, condition ordinances to start the timeline after permitting has gone through a particular process, such as plan approval or a building permit, so that would be when the time starts, and this was even discussed at Council at the time. But the other option that was brought forth that Barbara mentioned earlier from a member in the audience, was that a deadline like what you were saying that once that time has passed, that particular permit or ordinance is dead, there's no reversion, there's no, it's just dead, they got to come back in, go through the whole process again VAN PERNIS [in the audience]: untrue! VITOUSEK: Order, order. 17 EXHIBIT G DARROW: Anyway, so those were the options that were brought up back then. Nothing was actually forwarded from there, from that discussion. But again, this is, Councilman Inaba's bill is attempting to address this issue that has been a hot topic for some period of time. PAISHON-DUARTE: Thank you. I have a question VITOUSEK: Yes, please. PAISHON-DUARTE: Thank you. Councilmember Inaba, thank you for your work on this bill. So, I, you know, appreciate all of the work that staff put together to bring forth all of these reports, and I also appreciate the public testimony written in and oral. So,just scrolling through some of the written testimony, I notice one of the written, submitted written testimonies does not favor and opposes this bill. So more from a devil's advocate perspective, this person asserts that, you know, if this bill were to pass, that, you know, already Hawaii County is known to be, you know, highly, over-regulated, quote-unquote, onerous regulatory environment and that makes some of the assertions that it's going to have great effect,possible great effect on local economy. So, what's your perspective on that? I mean, we have, you have tremendous responsibility, we as volunteer, of course, have tremendous responsibility to the public, and one of the considerations should be, should be local economy. INABA: I might take a guess who submitted that written testimony. Most of the testimony received were from citizens, everyday citizens, like the ones who testify live today. That came from an industry, a resort industry association. And I would disagree because, again, what is the point of the bill? It's for transparency, and it's for accountability; that's all it's for. So, the question before us as a Commission right now is, are we going to allow continued practice of time extension? So, for example, if it's 10 years that someone is given, they are going to get another 10 years without any review? I don't think any of us can picture what happ-what it'll look like 10 years from now, much less 20 years from now, if an administrative extension like that is given. And I don't believe that it's a matter of economies; it's a matter of when you come before this body and the County Council, do you intend to commit and complete the conditions that you have agreed to within the time frame agreed to. VITOUSEK: Yeah, and I agree with Councilmember Inaba that the language as written that we are reviewing, I don't believe that that has any effect on the economic development of the county, because it's in line with the current practice, only clarifying further their responsibility to delegate. I believe that fully eliminating that discretion to delegate could have a potential impact on economic development, but as it's written here, I don't think it does personally. PAISHON-DUARTE: Thank you. I appreciate the discussion. INABA: And if I could add, Chair VITOUSEK: Sure. INABA: I, you know, the motion on the floor right now is to forward it with a favorable recommendation to Council, and I would probably ask Corporation Counsel because the 18 EXHIBIT G Windward Planning Commission has the same motion but the discussion was they support the intention. So, what you folks are going to do today is either forward it as the motion currently stands perhaps, forward it with a negative recommendation, or forward it with a positive recommendation and recommend a change on, a clarification on the intention. But I just want to make sure that the options are clear so that when it comes back to us, and I have to report it to my colleagues, and they can review the minutes, it's clear what is being recommended and whether you folks support the true intention with the clarified kind of language, or you don't. WONG: If I may, Mr. Chair, if you need me to VITOUSEK: What's that? WONG: If you need me to address that? VITOUSEK: Sure. WONG: Just for the record, Councilmember Inaba is correct; the motion on the floor was to forward, to move for a favorable recommendation to the County Council on Bill No. 194 as was referred to this body, I believe on August 17, 2022. The Commissioners have that language in front of them. If it would like to propose any amendments to the bill as it stated, there would need to be a subsequent subsidiary motion, and then you articulate that language, or there is the option to, you know, go through this motion, take a vote, if it fails or whatnot, there is an option for, to move forward unfavorable recommendation if that's the Commission's intention. But as far as I'm concerned, with the bill that's referred to the body, to this Commission, as is stated on August 17, 2022, the language is there. If there is any amendment that the Commissioners would like to make, there would need to be a subsidiary motion. VITOUSEK: Mahalo. Okay, at this point, do Commissioners feel ready to vote on the motion on the floor? INABA: Chair? Just— VITOUSEK: Yes. INABA: —okay,just for clarity, when we go back. So, you folks don't support—because the language right now is not as clear as proposed amended language—so I want to make sure that you folks are saying you support it as it is, and you don't support the true intention of the bill. Because that's, that's where we are going to have a gray area. The Windward Planning Commission was clear. So, I just want to make sure we are clear where you are, where you folks stand. And if it's Bill 194 as referred with the language there, there is no, you don't support the true intention with the clarified language, then that is what I will say to the Council when it gets to us. VITOUSEK: Sure. 19 EXHIBIT G PAISHON-DUARTE: So, is one possibility we, one of the Commissioners, one of us could put forward a motion to adopt the same language as the Windward Commission? WONG: This is Deputy Corporation Counsel Keyra Wong. I don't really understand you know, the bill as is written right now is what it is. If there is, if there needs to be clarification around the true intention or any, any other discussion surrounding that, I would think that the Commissioners would need to propose some sort of amendment to the current language. I'm not sure what the Windward Planning Commission did—and it looks like Ms. Jackson would like to address that—but I just want to be clear that the motion on the floor is what it is. I want to stay away from introducing additional language to that motion with respect to, you know, with the intention of, because to me that blurs the that really is a gray area. Ms. Jackson? JACKSON: Thank you. The Windward Planning Commission voted to forward a favorable recommendation to the County Council on Bill 194. So that was the original bill. They actually didn't see the amended language from Councilmember Inaba. VITOUSEK: Mahalo. JACKSON: And I can just add there was discussion because Councilmember Inaba was at that meeting, too, and he stated what his intention was for the bill, but in the end, they voted to forward a recommendation on Bill 194 as written. VITOUSEK: To me, intention is difficult to clarify. I think we are bound by the words that are put before us, rather than intention behind them. If the wording would be changed and brought back in the bill, then we would be reviewing that at that time, but for now with this wording before us, you know, we can make our recommendation, and if there are any recommended revisions to it, we can add those in a subsequent motion. So, at this time, is there anyone would like to offer a subsequent motion to make revisions to Bill 194 that's, that's, hasn't made motion on it already? Okay, seeing none, we will proceed with a roll call vote for the motion on the floor. ANDREWS: Okay. Commissioner Knowles? VITOUSEK: Not here. ANDREWS: Sorry. VITOUSEK: No problem. ANDREWS: Sorry, I made my note incorrectly here. Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. ANDREWS: Commissioner Kanuha? KANUHA: Aye. 20 EXHIBIT G ANDREWS: Commissioner DeFranco? DEFRANCO: Aye. ANDREWS: Chair Vitousek? VITOUSEK: Aye. Mahalo. INABA: Chair, if I may? VITOUSEK: Proceed. INABA: Mahalo. My apologies if there is confusion at the end here. And when we do get it back to Committee, I'll be clear that it was recommended with the language as it was presented to you folks, and the Planning Committee can take up any discussion and amendments at that time. VITOUSEK: Mahalo. And to continue that, I hope that, you know, you will be involved heavily in the overall code revision that will have a much bigger effect on how all of this moves forward in the bigger picture so that you can really get the intentions behind this, the clarity that we all want in there. INABA: Yes, I must have missed you folks at the meeting last night. But mahalo for all your service, I appreciate it. VITOUSEK: Mahalo. The hearing ended at 11:33 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 21 EXHIBIT G