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HomeMy WebLinkAbout2023-06-02 DRAFT Joint Meeting Exh B (Proposed Amendments to PC Rules 8 & 9) JOINT PUBLIC MEETING AND HEARING LEEWARD AND WINDWARD PLANNING COMMISSION COUNTY OF HAWAI`I HEARING TRANSCRIPT (DRAFT) JUNE 2, 2023 A duly advertised hearing on proposed amendments to County of Hawaii Planning Commission Rule 8 Shoreline Setback and Rule 9 Special Management Area was called to order at 9:43 a.m. via live stream online meeting, with Chairperson Dennis Lin presiding. Windward Planning Commission members participated via interactive conference technology (ICT) in the Hawaii County, Council Chambers in Hilo, 25 Aupuni Street, Hilo, Hawaii, and Leeward Planning Commission members participated via ICT remotely. WINDWARD COMMISSIONERS PRESENT: Dennis Lin, Louis Daniele III, Lauren Balog, John Cross, Wayne De Luz, and Chantel Perrin. LEEWARD COMMISSIONERS PRESENT: Barbara DeFranco and Mahina Paishon-Duarte. ABSENT AND EXCUSED: Michael Dela Cruz (Leeward Planning Commission), Zaheva Knowles (Leeward Planning Commission), Clement Kanuha III (Leeward Planning Commission), and Michael Vitousek(Leeward Planning Commission). ALSO PRESENT IN THE COUNCIL CHAMBERS: Sinclair Salas-Ferguson, Esq. (Counsel to the Planning Commissions), Jean Campbell, Esq. (Counsel to the Planning Department), Zendo Kern (Planning Director), Maija Jackson (Planning Program Manager), Tracie-Lee Camero (Planner), Clinton Mercado (Planner), Christian Kay (Planner), and Melissa Dacayanan-Salvador (Windward Planning Commission Secretary). ALSO PRESENT VIA ICT REMOTELY: Noriko Sauer (Leeward Planning Commission Secretary) and Janice Hata(Zoom host). Proposed Amendments to Planning Commission Rule 8 and 9 Review and action of proposed amendments to County of Hawai`i's Planning Commission (PC) Rule 8 regarding the Shoreline Setback and PC Rule 9 regarding the Special Management Area (SMA) to conform with Act 16, which amended Chapter 205A, Hawaii Revised Statutes (HRS) regarding the Special Management Area and Shoreline Setbacks. The proposed amendments to PC Rule 8 and 9 seek to add sea level rise to the definition of coastal hazards, adds a definition of beach to enhance beach protection, restricts construction of shoreline hardening structures at sites with beaches, increases the minimum shoreline setback from 20 feet to 40 feet, includes the construction of a single-family residence on a shoreline parcel as "development" and changes SMA application requirements related to historical resources. 1 EXHIBIT B (DRAFT) LIN: We will now move on to the Unfinished Business which is agenda Item 91. Proposed amendments to the Planning Commission Rule 8 and 9. Review and action of proposed amendments to County of Hawai`i's Planning Commission Rule 8 regarding the Shoreline Setback and Rule 9 regarding the Special Management Area(SMA) to conform with Act 16, which amended Chapter 205A, Hawaii Revised Statutes regarding the Special Management Area and Shoreline Setbacks. The proposed amendments to PC Rule 8 and 9 seek to add sea level rise to the definition of coastal hazards, adds a definition of beach to enhance beach protection, restricts construction of shoreline hardening structures at sites with beaches, increases the minimum shoreline setback from 20 feet to 40 feet, and includes the construction of a Single-Family residence on a shoreline parcel as"development" and changes SMA application requirements related to historical resources. So, first up, we'll move to the staff presentation by Tracie. CAMERO: Thank you Chair, please hold while we get the slides up. Good morning Chair and members of the Windward and Leeward Planning Commission. Before you today we have the review and action of the proposed amendments to the Planning Commission Rule 8 and 9 regarding the Special Management Area and Shoreline Setback Area. As you all recall we did meet on April 20, 2023 and the proposed changes are going to be presented to you today based off of that meeting. First off, I wanted to discuss one of the proposed amendments that was discussed at the past joint Planning Commission meeting, and I really want to kind of discuss this because before I go into the proposed amendments, I want to be able to address Commissioner Paishon-Duarte along with Commissioner Kanuha's request for opinions on kuleana lands and whether they could be exempt from SMA review. So, staff worked to see how we could incorporate this into our current processes. Well also looking into the current legislative bills and see where our authority can really land with this. We're still in the process of looking further into this. I did provide to you guys today Legislative Bill HB 365 which was passed out to the Commissioners this morning, and this does address some of the Hawaiian customary practices. There is still more work like I said that needs to be done on the legislative side that would need to be done in regards to the kuleana lands. This bill was currently put onto the Governor's desk at the end of April. So, we'll be waiting for that to get passed. You will not be voting on this bill today. It is just merely informational, and this would be our next steps with the rule amendments should this bill get passed. My apologies this one right back to the beginning of the slides. JACKSON: Excuse me Tracie, can I just jump in for a minute. So, for the public sake I just want to read off what HB 365 is proposing. It's proposing to exempt from SMA review any practices, it says "traditional agricultural practices" or"traditional fishponds". So, any work within traditional fishponds would be exempt from SMA review. The other provision that it provides is an exemption for SMA review for"Hawaiian traditional and customary practices, including work conducted by traditional means near, in, or related to loko i`a, traditional Hawaiian fishponds". So, that's kind of the first step that the legislature is 2 EXHIBIT B (DRAFT) looking at towards exempting some of those native Hawaiian cultural practices from SMA review. CAMERO: Thank you Maija. So, on your screen you have the proposed amendments to the Planning Commission Rule No. 8 resulting from the Joint Planning Commission meeting. Planning Commission Rule 8-10 (a)(3) the waiver of the public hearing and action. On your screen before you we are proposing to remove the provision that will now require all other structures or activities other than structures and activities listed in the Planning Department Rule 11-7 will now need to go before the Planning Commission at a public hearing in order to secure a shoreline setback variance. The next amendment that we're proposing to the Planning Commission Rule 8 is the criteria for the approval of a variance located within Planning Commission Rule 8-11. In which we are removing the word"sand". This provision was made to address the concerns raised by the Joint Planning Commission to remove the word"sand" from beaches under Rule 8-11 (d)(2)the criteria for approval of a variance under the hardship standard. And lastly, the Planning Director is proposing the amendments to Planning Commission Rule 9-11 (b)(4) which is the archeological resources. Which reads (A) an archaeological inventory report or assessment prepared by a licensed archaeologist containing significant assessments, effect determinations, and proposed mitigation commitments. The report shall be completed pursuant to the Department of Land and Natural Resources— State Historic Preservation Division (DLNR- SHPD) rules. (B) A prior `no-effect' letter from the DLNR-SHPD for the subject property or(C) a letter and location map for the Planning Department to submit to DLNR-SHPD claiming no significant historic sites are likely to be present. The letter must present supportive evidence documenting the proposed land altering activities (including the affected area and depth of disturbance) and documenting the likely nature and depth of the historic properties that may have once existed in the area. These are what are being proposed. The bracketed and strikethrough is what we are proposing to remove. And lastly the Planning Director recommends that the Joint Planning Commission approve the proposed amendments to the Planning Commission Rule 8 and 9 and again,just to go over the next steps. I know this was discussed last April, but I kind of want to go over it one more time. So, the Planning Commission Rule 8 and 9 the Commission can either adopt the rules as recommended by the Planning Director, the Commission can make motions to amend the rules. Once the rules are adopted, the rules will be transmitted to the mayor for review. Once the mayor has signed the rules, the rules will be filed with the County Clerk's Office and rules will become effective 10 days after they filed with the County Clerk's Office. As for the Planning Department Rule 11, the Planning Director will incorporate the feedback from the Planning Commission. The Planning Director will hold a community meeting to present Rule 11 and get additional public feedback and then Rule 11 will then transmitted to the mayor's office for review. Once the mayor has signed the rules the rules will be filed with the County Clerk's Office and then the rules will become effective 10 days after they are filed with the County Clerk's Office. And that concludes my presentation. The chair is yours. 3 EXHIBIT B (DRAFT) LIN: Thank you Tracie. Maybe if you could leave the amendments on the screen for us, I think that might be helpful for our discussions purposes. So, Commissioners questions, discussion, questions for the staff at this point? Oh yeah, I think we can bring them back up, right. Yeah, they are on the Zoom. Yeah, Leeward Commissioners any questions for staff at this point? PAISHON-DUARTE: Yes, aloha this is Mahina Paishon-Duarte. LIN: Go ahead, Commissioner. PAISHON-DUARTE: Thank you. Can you please review for us, once more. The proposed revisions to regarding sand hardening. Can you just provide a little bit more information again. Thank you. CAMERO: Commissioner Paishon-Duarte, is that the discussion within the hardship standards, where the private facilities or improvements that may artificially fix the shoreline and how we are— PAISHON-DUARTE: Yes. CAMERO: — removing [indecipherable] PAISHON-DUARTE: Thank you. CAMERO: Okay. PAISHON-DUARTE: Yeah. JACKSON: Aloha Commissioner, this is Maija Jackson. So, I believe this was a request from the last meeting. Commissioner Vitousek if I recall correctly requested that the word"sand"be removed because the word beaches, the definition for beaches already contains the words "sand". So, it was felt that it was a redundant use of the word. So, if you — PAISHON-DUARTE: Thank you. JACKSON: — [indecipherable] PAISHON-DUARTE: I do recall the — JACKSON: — definition of— PAISHON-DUARTE: Yeah, please proceed. Sorry, thank you. JACKSON: Yes, so if you refer to the definition of beaches that's in the rule, you'll see how the beaches are described. Did that answer your question? 4 EXHIBIT B (DRAFT) PAISHON-DUARTE: Yes, thank you. JACKSON: Okay and Chair if I may speak to some of the testimony that was received. LIN: Yes, go ahead Maija. JACKSON: So, one of the common concerns was the change from a 20 foot to a 40-foot setback and the testifiers felt that the 40-foot setback wasn't sufficient. The change was made to enact Act 16 and just to bring our rules in alignment with the State Law. So, now the new minimum is 40 foot. The Planning Director has the authority to set a greater setback on a project-by-project basis. So, that evaluation is done based on the property, based on what information we have on erosion rates for that particular property and there are times when the Director does set a larger setback. Those often don't come before the Commission because they're done for homes that are under half a million dollars in valuation. So, a minor permit is issued so that's why the Commission doesn't typically see those. We do, the Department started a shoreline setback project I think about 2 years ago and they're working with a consultant, another stakeholders to determine an erosion rate for our County for the various geological typologies around the island because we are unique. We're very different in our geology from Maui and Kauai and Oahu. That study is ongoing and once that is completed Rule 11, which is our Shoreline Setback rule will be amended again to incorporate any new setbacks which we anticipate will probably be increased in some areas and may stay the same in others. But the minimum for the entire State is now 40 feet. LIN: Thank you Maija. Any questions for staff? Commissioner Duarte. PAISHON-DUARTE: Thank you, thank you. Just one final question to staff. Of all the testimonies received, I tried my very best to read every single one of them, but I was not tracking. About what percentage, estimated percentage are, I saw the vast majority by my review that are opposing the amendments to Rule 8 and 9. Do you know, are there any written testimony that came in support or in favor of the proposed amendments? I'm just trying to understand the percentage of opposition as opposed to support. JACKSON: I believe Ms. Harden's testimony supported some components and opposed others and that would be the only one that we are aware of that is somewhat support of the rule changes. PAISHON-DUARTE: Thank you. LIN: Any other Commissioners? Okay, for Maija. So,based on what you've shared with us there's a report pending that's looking at here on Hawai`i Island specific areas may or may not need increases or changes in their shoreline setback area. So, for like, some of the testimony today regarding like Ali`i Drive, that maybe like a whoa we got to increase it or if we're in Puna area where there's all cliffs, maybe more adjustments because there is no basic like shoreline. But is that what you're, basically the idea of what that study is talking about? 5 EXHIBIT B (DRAFT) JACKSON: Yes, and I would also like to just clarify again that a lot of the testimony that was received was opposing the shoreline setback which is in the Planning Department Rule 11 and the Commission does not have the authority to change or amend that rule. The Director just provided it to the Commission and the public to see how the Department rules related to shorelines and the Commission rules interrelate. But the Director is going to take public testimony into consideration, gain more testimony when we have the community meeting and then make the amendments to Planning Department Rule 11. KERN: Chair, if I may. LIN: Go ahead. KERN: Thank you. Just to add to that. So, what've been working on just to continue on with Maija was saying. Is that we've been working on a science-based shoreline setbacks. It's been in conjunction with UH, with NASA and our Department as well as a consultant team and what we're looking at is kind of a, again science-based so applicable to the situation on the ground or on the shoreline. What we anticipate is certain areas will follow projected sea level rise with an increase of the shoreline setback based on that. We're also looking at a kind of a rise in run potential for step pali's and cliffs which is kind of unique to our island and then other areas may not change and keep that 40 where it wouldn't be needed. That's the framework that we're looking at right now and that will go to an entire public hearing process to be adopted. But it is being based on science, is the goal there. So, any questions, happy to answer. DANIELE: What's the time frame on the completion of this study? KERN: We're close, we pretty much at the final stages of it. Expect to have it coming out probably at the end of this year, beginning of next. DANIELE: Thank you. LIN: Any other questions Commissioners? Oh, Vice Chair DeFranco. DEFRANCO: Getting back to Zoom. Yes, I just wanted to mention I appreciate reaching in and looking for the kuleana and how to protect some of the kuleana's that are in existence, and I did also notice in looking at a lot of the testimonies which to me was cut and paste and a bit repetitive. But it had the common feeling of wanting to include more community input and transparency in doing this. But I feel like you've done a good job in trying to make the changes that we asked last time, and I appreciate that. Thank you. LIN: Thank you. I guess, I wanted to also focus on some of the testimony that we got today too. They talked about this Cultural Resource Commission regarding the archeological studies and that stuff. How does the Planning Department interact with that Commission, if any? 6 EXHIBIT B (DRAFT) CAMERO: So. KERN: So, the CRC, we administer the CRC or the Cultural Resource Commission. At times applications are sent through there. We have a couple in there right now. Typically speaking, they go through SHPD. SHPD is the authority or the State Historic Preservation Division. There where we send the request to whether to review a AIS or archaeological inventory survey, or for them to make the determination that no further work is being done there. They are the authority on that. When there is a request by them or potentially the Commission as there has been or if we see something unique, we will send that to the CRC for their review. It's not every single time, it's kind of on a case-by-case basis. LIN: Thank you. Commissioners any other questions, discussions? BALOG: Could I ask for some clarification on the waiver of public hearing. JACKSON: Yes, so what did you want to know about the waiver? BALOG: I understood what was in the presentation, but just how that applies with what we have as far as the rule changes in front of us. JACKSON: Okay. BALOG: Because it looks a bit different to me at this point. JACKSON: So, basically the State law allows the Planning Commission rules or the Planning Commission to delegate to the Director the ability to waive a public hearing for issuing a shoreline setback variance and they allow that for I believe 3 things. And those are listed on Page 8-6 of Planning Commission Rule 8 in Section 8-10. At the last hearing, one of the Commissioners said that one provision that the State law allowed which was to waive a hearing for other structures or activities provided that no person or agency requested a public hearing. The Commissioner wasn't comfortable with that, and it seemed like the entire Commission wasn't so, we removed that from the rules. So, now there are only 3 situations where a public hearing can be waived. That is for maintenance, repair, reconstruction and minor additions or alterations of legal boating, maritime, or water sports, recreational facilities that result in little or no interference with natural shoreline processes. So, that's one. The second one is for stabilization of shoreline erosion by moving sand entirely on public lands and the third instance is for protection of a structure determined by the Department to be legally constructed or a legal structure or public facility including any facility owned by a public utility that does not fix the shoreline under an emergency authorization issued by the authority. So, two of those situations specifically affect public lands and facilities and then the last one is for maintenance, repair, reconstruction of boating facilities. Which are often times also public facilities. 7 EXHIBIT B (DRAFT) BALOG: Thank you, that answered my question. CAMERO: And to just go back to the April meeting. I think Maija had stated that we rarely see these instances happened within the Planning Department. KERN: Yes, if I may add. This isn't new. This been in place for, how long Maija? Decades? JACKSON: Many years. KERN: Many, many, many years. LIN: Just for my clarification. The rules and the amendments proposed today and at the last meeting. Is just to comply with what has changed, right, the Act 16 and HRS that's been passed over the few years. So, we're just trying to move into conformity. JACKSON: Yeah, I would say the first two items that Tracie mentioned in her presentation were directly from Act 16 or as a result of Act 16. The third one was somewhat at the request of SHPD because their application submittal requirements have changed over the last 5 to 10 years and our rules and application are outdated based on the feedback, we got from SHPD of how they want to receive the applications. So, that last slide was to address SHPD's concerns. CAMERO: And if I may add to that. We did take into account HAR, the rules for SHPD into that specific section for the archaeological resources. We combined it with our previous wording within the rule. LIN: Thank you. Any other questions? Leeward Commissioners any questions? Okay, it not then I will entertain a motion on the proposed rules. DANIELE: I'll put in a motion to adopt these rules. Adopt the amendments, excuse me. LIN: It's been moved by Commissioner Daniel. DE LUZ: Second. LIN: Seconded by Commissioner De Luz. Any discussion on this motion? Seeing none, a roll call vote. CAMERO: Thank you. Commissioner Balog? BALOG: Aye. CAMERO: Commissioner Cross? 8 EXHIBIT B (DRAFT) CROSS: Aye. CAMERO: Commissioner Perrin? PERRIN: Aye. CAMERO: My apologies, I was supposed to go Commissioner Daniele, first. My apologies. Commissioner Daniele? DANIELE: Aye. CAMERO: Commissioner De Luz? DE LUZ: Aye. CAMERO: Vice Chair DeFranco? DEFRANCO: Aye. CAMERO: Commissioner Paishon-Duarte? PAISHON-DUARTE: Nay. CAMERO: And Chair Lin? LIN: Aye. CAMERO: The motion doesn't pass. LIN: Yeah, so, we do need all Commissioners to either agree or disagree on the motion to pass the rule amendments. So, Commissioner Paishon-Duarte if you could kind of give us your thought process and what kind additional feedback or additional information that we'd like to change or add or ask the staff for? Yeah, or you could make a motion as well to change — PAISHON-DUARTE: Thank you, essentially, I agree and approve. I'm in agreement with the proposed amendments to Rule 8, not to Rule 9. So if this is unbundled, I would and separated and there is a vote called for Rule 8 amendments and then Rule 9 amendments I would vote differently essentially. LIN: Sure, Commissioner Paishon-Duarte. For Rule 9,what would the changes that you would propose to get it to a level that you're comfortable with? PAISON-DUARTE: I understand the reasoning behind this and I'm very appreciative of our county staff and to all the work that's been done. I understand that it's the reasoning behind the proposed amendments is to come into compliance, right, with the [indecipherable] rules. 9 EXHIBIT B (DRAFT) However, I'm not sure, I don't have a proposed solution or amendment to offer at this time. I'm just not comfortable with waiving public testimony as proposed. LIN: Okay, is there a specific section that you're calling out in Rule 9 or a specific issue — [indecipherable crosstalk] PAISHON-DUARTE: If you'd like to go to recess, I can take a look and if it's going to be about me trying, if I need to provide more substantive feedback then I'm going to request the recess. So, I can take a look at all of the information that's been presented over email. LIN: Okay, I also see that Vice Chair DeFranco has her hand up. Go ahead. DEFRANCO: Yes, hi. I just wanted to tell you I felt we went from a motion on the table there where we could discuss what's happening and it moved to me way too quickly into voting on this. I didn't think that we allowed ourselves discussion and that would be the time that we could share those questions of what was working and what wasn't working with all of this. Not to be critical but that's just how I felt. I felt we really didn't discuss amongst each other on how everyone was feeling, what was really happening. So, I have to appreciate that Mahina, excuse me, Commissioner Paishon-Duarte is feeling this way and I don't like personally being pressured in any way either to look at things. But I can understand from listening to all the people that spoke that they were worried about this ability of the Planning Director to not have. Is it public testimony, Commissioner Duarte, was that it? Was that the Rule 9 that you— PAISHON-DUARTE: Yes. DEFRANCO: Yeah. PAISHON-DUARTE: Yes, correct. DEFRANCO: And that was brought up by a lot of people and there's just that sort of feeling of fear of not having the community empowered in making the decisions. But, on the other hand, I also heard quite clearly about how there's only a few instances that this actually wouldn't be going to a public hearing. So, in most instances if anything is going to be done in any of the shoreline SMA places it is going to have a public hearing and public scrutiny and it's only in a very minimal sense that the Planning Director would even ever execute the idea that there wouldn't be a public hearing. At least that's my understanding but and I'm not sure if we could even at this time discuss this. I'm not sure if I'm still in order, so I just wanted to say this. LIN: Yeah, so, thank Vice Chair DeFranco. I think at this point, we would need to have another motion on the table to have discussion and I believe — DEFRANCO: Okay, I would like to make a motion to have some discussion here amongst all of us to make sure that we're all feeling comfortable with everything. I need a second then I guess. 10 EXHIBIT B (DRAFT) PAISHON-DUARTE: Second, Paishon-Duarte. DEFRANCO: Okay, we have a motion on the table then do we. We that happen, where are we — LIN: I heard you but if you could repeat your motion. DEFRANCO: Yeah, my motion is sort of table where we're at in this process and make a motion to discuss to move us backwards a little bit to discuss amongst each other. So it isn't resting on someone's boat. I don't know how you want me to put it. I make a motion to open a discussion before we finish the vote. SALAS-FERGUSON: Good morning Chair, Vice Chair DeFranco. This is Sinclair Salas- Ferguson, Deputy Corporation Counsel. So, I have a few suggestions. What I'm seeing is that Commissioner Paishon-Duarte has some further concerns with I think it's in Rule 8-10, the waiver of public hearing and action. I think that was her concerns. So, what we can do I think the best way to satisfy everyone's interests is it seems like some Commissioners have more questions on 8-10. So, the previous motion to approve the amendments failed. So, we're back at square one. So, I think if the Commissioners have more questions about that right now would be the time to ask those questions and then once the Commissioners have finished asking all of their questions of the Department regarding that specific section or any other section that any Commissioner has in questions about. Then somebody can make a motion to either approve the amendments or deny the amendments and once that's seconded then the Commissioners can discuss the amendments and then they can make further amendments to the motion. For example, all these amendments that are put before the Commission today. The Commission doesn't have to accept or deny all of them together, they can accept some and deny some and also the Commission can suggest further amendments to the proposed amendments. But if those further amendments substantially alter the amendments as they are right now, we'd have to provide further notice to the public and continue decision making on those amendments. So, right now I suggest that you guys go back into fact finding and ask the Department to clarify any concerns that you may have. DEFRANCO: Thank you, those were some things that I didn't know we had options, so appreciate that. LIN: Okay, so, Commissioners any further questions for staff? Go ahead Commissioner Paishon-Duarte. PAISHON-DUARTE: Thank you and thank you to all the staff for helping to guide us to this conversation today. Director Kern if I might ask you. Can you please again, how is the proposed amendment to waive a public testimony while it's very far and few between instances where this will come into effect. How will this benefit the public and how will this benefit you as Director and how will this benefit the public? 11 EXHIBIT B (DRAFT) SALAS-FERGUSON: Chair, can I just say something a foundational — LIN: Sure, go ahead. SALAS-FERGUSON: — some foundational information for everybody. Again, this is Sinclair Salas-Ferguson, Deputy Corporation Counsel for the Joint Planning Commission. Commissioner Paishon-Duarte, I just wanted to give you a little bit of the legal structure for 8- 10, the waiver of public hearing and action. This is a little bit of background for everybody. So, the Hawaii Revised Statute gives the Commission the authority to delegate certain powers to the Department and one of the powers is the authority to waive a public hearing and certain specific instances. So, if you look at 8-10 it's (a)(1), (2) and (3) and so, 1, 2 and 3 are already in the Commission's rules. So there's already that, that authority has been delegated in the past already and so, the last time we were here. There was another addition to be, another power that was delegated and that was the power for the Department to waive a public hearing for any structure or any use and that was an issue at the last hearing, and I think the Department heard the Commission's concerns. So, they removed that delegation of authority. So, now these 3 delegated authorities are still in the rules, and I think that one of the amendments on number 2 is just to track what was changed in the Hawai`i Revised Statutes. So, as we sit here today these authorities are already delegated and the change is just the underlined words in number 2. So, I hope that gives you a little bit of background on this amendment and then I hope that helps everyone and I'll pass it to Director Kern to address your question. KERN: Yeah. Thank you very much. So, the essence of those three components are really when there is a need and they're really based on the public right now. There's also the ability that if the Director makes a decision there's the ability to file an appeal against that as well. So, there's an additional layer. But the intent of these are when there's really a true need for that based on that criteria otherwise everything gets sent forward to a public hearing. It's like Sinclair said this has been in place for a long time. I'm not aware of any use of this but certainly want people to feel comfortable. Yes, it's for emergencies. LIN: Yes, I do see hands up on the screen. Commissioners do want the staff to continue, or do you want a clarification on what was said. DEFRANCO: I wanted a clarification from the Planning Director on to give us an example of when it is used. When is that waiver ever been used. Can you tell us. KERN: Let me just read these real quick. So the Commission hereby delegates the authority to waive the public hearing and take action on a variance application for one stabilization of shoreline erosion by moving sand entirely on public lands. Go ahead. JACKSON: If you guys don't mind. I'd like to actually share screen so that everybody can read — 12 EXHIBIT B (DRAFT) KERN: Perfect. JACKSON: —read it. If you could,just give us a moment. So, Tracie is going to share screen of what Act 16 proposed. So, what you'll see is the existing law and then the underlined language is what Act 16 added. So, then you'll get to see what the existing law has been with what's already been in our rules for several years and then the change that was done by Act 16. Just to answer the question on how frequent are these. I've been in the department for 16 years and I have not personally seen a shoreline setback variance waived hearing and I've worked in SMA probably about 4 or 5 of those years. So, they're very infrequent. DEFRANCO: You can't really give us an example of when they would do something like that. What would prompt them to do that. KERN: Sure, let's say — DEFRANCO: [indecipherable] seeing it done. KERN: — let's say that there's a hurricane, cliff starting to completely erode and fall into the ocean where there needs to be an emergency situation occurring. DEFRANCO: Okay, so it's like an emergency situation with these because you'd have to act right now that it wouldn't be put out there to the public and — KERN: Correct. I mean, I just want to make a statement. It's a little bit, I would say challenging in a polite way that there's basically an insinuation that the Department doesn't honor the public hearing process. For example, we are not required to host Zoom. It's not a requirement. That is a choice that we make as a department to make sure that we have public participation in there. We always err on the side of public participation and public engagement. Other counties don't' necessarily do that same thing. We do, we continue to do — DEFRANCO: I personally feel that you do. KERN: Thank you, thank you. DEFRANCO: I think you guys are doing a great job that I know that you're trying to be inclusive, and I appreciate you taking the time to explain it. But because we had so many questions also from people writing and on Zoom, I am just taking this moment to explore it further so they can hear this from you because I also felt like that. Like you're feeling so. KERN: Thank you Chair. DEFRANCO: Vice Chair. KERN: Vice Chair and Chair of LPC and Vice Chair for right now. Thank you. 13 EXHIBIT B (DRAFT) LIN: Maij a. JACKSON: There is also a requirement that the Department provide public and private notice including reasonable notice to the abutting property owners prior to making a decision on a shoreline setback variance outside of a public hearing. The Director also has to follow all the criteria for issuing a variance. So, there is a set of strict standards for issuing a shoreline setback variance and he issues a determination of how the request meets those standards and that's a public determination that can be appealed then to the Board of Appeals. So, there are, there is, there are protections for the public and also opportunity for the public to be notified of what's occurring. DANIELE: Yeah, this is Commissioner Daniele. Yeah, I'd just like to add that it's curious that no one can remember when this has been used. So, I think that's a good testament to the process. Thank you. KERN: I think it might be helpful to go through, thanks for putting those up on the screen. But let's just go through those again. 1) Stabilization of shoreline erosion by moving sand entirely on public lands; 2) Protection of a structure determined by the Department to be legally constructed. A legal structure or public facility, including any facility owned by a public utility that is regulated pursuant to Chapter 269, HRS that does not fix the shoreline, under an emergency authorization issued by the authority, provided that the structure or public facility is at risk of immediate damage from the shoreline erosion as determined by the Department in consultation with the appropriate agencies i.e. U.S. Army Corps of Engineers, DPW and the authorization does not exceed 3 years. And maintenance, repair, reconstruction, and minor additions or alterations of legal boating, maritime, or watersports recreation facilities that result in little or no interference with natural shoreline processes. To me, all 3 of these are legitimate areas to have that ability to move forward if it's necessary and again it's been something that's been on the books for many, many years. LIN: Okay, I don't see Commissioner Paishon-Duarte's camera, but did you have any further questions for staff or Director Kern regarding this specific rule? PAISHON-DUARTE: No further questions,just comment. Just because we don't have a lot of examples for which this rule has been in practice and hasn't been applied. For me, that can be looked at in two ways. One that can be positive, and it can also not be positive in the sense that it has not yet been fully applied. These rules hasn't been tested right in interpretation in a real case scenario. So, I still have questions regarding Rule 8 through 10, Rule 8-10. All the other proposed amendments I don't have a problem there. I think it makes sense. I just want to state clearly, where not. LIN: Yeah, so Commissioner Paishon-Duarte. I guess there's several options I guess we could go here is one you could propose further language to strengthen what you feel needs to be strengthened in this rule or we can further have a discussion on the questions that you may have regarding this particular section. So, because it hasn't been implemented then 14 EXHIBIT B (DRAFT) we can propose language to make it very clear on here is exactly when it does apply. So, we have several options. So, I just wanted to place that out there. PAISHON-DUARTE: Thank you and I understand that you folks have your regular Windward Commission meeting, and I actually will need to get off by 10:45. What I'm proposing is if it's possible if this rule amendment to Rule 8-10 be tabled or omitted completely and if we can schedule another Commission meeting and have a little more time to put something forward. I worry that we don't have enough time to come up with an amendment that will maybe strengthen the language. LIN: Okay, understood. So — KERN: Can I make a quick comment. LIN: Go ahead Director Kern. KERN: With respect on this,just want to, it's very challenging for the staff to coordinate joint meetings, it really is. If a bifurcation does happen that's perfectly fine. I do want to point out these have been in place and have been in everybody's computers for quite a while and I would really appreciate some constructive feedback to move us in a direction of some type of certainty, so we actually know where we're going on this. BALOG: I just want to thank the Department, when I ask for a clarification earlier. I think part of the confusion when I read through it was that I read Section D and E as separate from A. So, if there's a way, now reading it after clarification I understand it a lot better. So, maybe that's part of what the other Commissioner is trying to address herein 8-10. JACKSON: Commissioner Balog, you're speaking to Section D and E of 8-10? BALOG: Yes. JACKSON: Okay, let me look at that. BALOG: I don't have a problem A; I think it's perfectly clear. I just wanted to add I think D actually does address the 3 requirements and that are stipulated in A. So. JACKSON: Yeah. BALOG: I don't know, I'm trying to help. JACKSON: So, yeah, so Section D is basically saying that the Department may waive a public hearing and take action on a variance for those items in section A provided public and private notice is provided and notice to abutting property owners. And then Section E is saying the Director has to make that decision to grant a variance based on the criteria in the rule and provide a record of that determination. So, going back to the main discussion I think it would be the Department's preference to move ahead as much of the rule adoption as possible 15 EXHIBIT B (DRAFT) and if the Commission doesn't feel comfortable with 8-10, we table that and we tackle that in the future along with other recent changes to State Law. LIN: Okay, earlier we talked about there's more rule changes coming anyways. So, I guess we have to change this motion up again. Sinclair, do we have to — DE LUZ: We can make a motion to amendment 8 and 9 with the exception of 8-10 be approved. So, I make that motion. LIN: Specifically about 8-10 the Waiver of Public Hearing and Action. DE LUZ: Yeah, I thought it would be easier to make the motion that we move to approve amendments 8 and 9 with the exception of 8-10. LIN: In its entirety. DE LUZ: Which would in its entirety. Motion made. PAISHON-DUARTE: Second. LIN: Okay second. Okay motion by Commissioner De Luz, seconded by Commissioner Paishon-Duarte. Is there any discussion on this motion? To clarify, we are moving ahead with the amendments that were proposed in Rule 8 and 9 except for the section of 8-10 in its entirety which will be tabled for a later hearing. Okay. If that is understood, then a roll call vote. Yes, there's no further discussion, so, yeah. CAMERO: Commissioner De Luz? DE LUZ: Aye. CAMERO: Commissioner Paishon-Duarte? PAISHON-DUARTE: Aye. CAMERO: Commissioner Balog? BALOG: Aye. CAMERO: Commissioner Cross? CROSS: Aye. CAMERO: Commissioner Daniele? DANIELE: Aye. 16 EXHIBIT B (DRAFT) CAMERO: Commissioner Perrin? PERRIN: Aye. CAMERO: Vice Chair DeFranco? DEFRANCO: Aye. CAMERO: And Chair Lin? LIN: Aye. CAMERO: The motion passes 8-0. Thank you. LIN: Thank you. Thank you, Leeward Commissioners, for participating today and I do want to ask the Planning Department to please keep us posted on Rule 11 with the Shoreline Setback. I think that's going to be a very hot issue and we'd like to know what that result is of when the public hearings are and how we can participate as well. Oh sure, and Commissioner Paishon Duarte feel free to reach out to Sinclair if you need any further clarification on the interpretation of that section. PAISHON-DUARTE: Thank you very much. LIN: Okay, thank you very much. Move to adjourn Joint Planning Commission hearing. Motion? DANIELE: I'll make that motion to adjourn the Joint meeting of Windward and Leeward Commissions. LIN: Okay, moved by Commissioner Daniele. PERRIN: Second. LIN: Seconded by Commissioner Perrin. All in favor,please say aye. COMMISSIONERS; Aye. LIN: Any oppose? Okay, Joint Planning Commission hearing is now concluded at 10:37 a.m. Thank you very much. 17 EXHIBIT B (DRAFT) The hearing ended at 10:37 a.m. Respectfully submitted, Melissa Dacayanan-Salvador Secretary to Boards and Commissions 18 EXHIBIT B (DRAFT)