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HomeMy WebLinkAbout2006-10-27 tcouncil PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 27, 2006 A regularly advertised hearing on the COUNTY COUNCIL€S DRAFT ORDINANCE REGARDING THE GENERAL PLAN AMENDMENT PROCEDURE was called to order at 10:28 a.m. at the King KamehamehaŒs Kona Beach Hotel, 75-5660 Palani Road, Kailua-Kona, Hawaii with Chairman C. Kimo Alameda presiding. PRESENT:C. ABSENT & EXCUSED: Jeffrey McCall Fred Galdones Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher J. Yuen, Planning Director Phyllis Fujimoto, Staff Planner Jeff Darrow, Staff Planner And two people from the public in attendance. INITIATOR: COUNTY COUNCIL Review and comment on a draft ordinance regarding the General Plan amendment procedure. ALAMEDA:Okay. All right, Agenda No. 4. You€re ready? Okay. Final agenda item. Staff? DARROW:If I can defer the presentation for this agenda to our Director. ALAMEDA:Director? YUEN:This is actually an amendment to the General Plan covering the way the GeneralPlanitselfgetsamended;andit€sactuallyinitiatedbytheCountyCouncil.Asyoumay know, the County Council is looking at the Interim General Plan amendments that I initiated somemonthsago;and,inthecourseofthat,theystartedlookingatwhatitwouldtakeforthe Council to start to do General Plan amendments and were dissatisfied with the existing procedure,whichsomeCouncilMembersseemtotaketoolong.SotheCouncilpasseda resolution. That resolution is Exhibit 1 to what you have. The resolution contained a draft ordinancethatwouldchangetheGeneralPlanamendmentprocedure.That€sExhibitA,attached to Exhibit 1. That€s the Council€s bill. 1EXHIBIT B The basic thing that it would do is it would show the timeframe between the Council initiating a General Plan amendment and it coming back to them from the Planning Director and Planning Commission. The way that the Council would initiate a General Plan amendment in either, in any of the current law or under the bill is that they would have, they would pass a resolution initiating a General Plan amendment. Then the Charter requires that all General Plan amendments come to the Planning Director and to the Planning Commission for your review and recommendation back up to the Council. Under the current timeframe, the maximum timeframe would be about seven months when you add up the time that the Director can take with the time that the Planning Commission can take on it. Now, that€s, it doesn€t mean to take that long but that would be a maximum timeframe. Please note that actually this amendment, because the way to amend the General Plan is imbedded in the General Plan. This amendment itself has to follow that procedure. So the Councilpassedthisresolutionandsentitontome;andnowit€sgoingontothePlanning Commission. The resolution asked that this be done within 60 days. Now, as I say, the current law does give us a longer timeframe; but I did try to get it up to the Commission at least promptly after we received this, after we received this transmittal from the Council at the end of August. In looking at what the Council did and looking at the current procedures, my recommendation actually is to make a broader change to the amendment procedures. Nothing really drastic but there are some things in the, if you read the present ordinance carefully, which is Section, Chapter 16 to the General Plan, there are some inconsistent elements, there are some ambiguities there. So we came up with a different version of the amendment; and that€s what you have as Exhibit 3 to the attachments, and that€s Planning Department€s proposed re-write of the Council€s amendment bill. In Exhibit 3 for Charter amendments initiated by the Council, it does shorten the timeframe from that in the current ordinance, but not so much as the Council, as the Council€s bill. It really follows the timeframe for rezoning ordinances; and given, I mean, we think that a Charter amendment is entitled to at least the same timeframe as a rezoning ordinance. If I were to go through this -. GALDONES:General Plan or the Charter? TORIGOE:Charter, is it Charter amendments? GALDONES:You said Charter amendments. You meant General Plan? YUEN:I€m sorry, General Plan amendments. I€m sorry. Just to go through Exhibit 3, which is known as the Planning Director€s bill -. ALAMEDA:Commissioner Iwashita, you€re on the right page on that one? 2EXHIBIT B YUEN:Exhibit 2 is the current, I skipped the Exhibit 2. Exhibit 2 is a copy of the current amendment procedures, all right; and then Exhibit 3 is actually Ramsayered from the current amendment procedures; and that€s the Planning Director€s proposed bill. All right. SIRACUSA:Excuse me. ALAMEDA:Commissioner Siracusa. SIRACAUSA:And the one right after that, the very final version is the final, the Planning Director€s final bill without the Ramsayering anymore? YUEN:Right. That€s what you call the clean -. SIRACUSA:I started to track it line-by-line and it looked like that€s sort of what it was. ButIjustwanttomakesurethatthat€s-. YUEN:That€swhatitwouldlooklikeasacleanbill,asacleanordinance.It€sa mix of -. Jeff, is that correct? DARROW:Exhibit 3 is the Ramsayer version and the clean version, so it€s combined to ƒ. ALAMEDA:Okay. YUEN:Okay. So the second thing that, in Exhibit 3 that starts Ordinance No.‚ and doesn€t have all, as much underlining, that€s how it would, if you sat down and read it straight through, that€s what it would look like; and sometimes it€s a little difficult to read things with the Ramsayering and the brackets; and you get lost on it. Okay, so back to the Ramsayering version -- The first section is a clarification. And what it tells you is that the Planning Director is, there€s supposed to be a 10-year annual review both on, under current procedure. It doesn€t tell you, though, exactly what, does this 10-year start, do you start the process after 10 years, what stage happens after 10 years. And, so, this one tells you that the amendments that result from the 10-year review are supposed to be forwarded to the Council 10 years after the last enactment of the General Plan. So that would be 10 years after February 2005. So then, you know, in a few years time the Planning Director has to make, internally make the timetable, working back from a deadline to forward to the Council. And the Planning Commission has a set time to review. And, so, the Planning Director has to work out this timetable. And partly it€ll depend, I mean, in practicality do you hire a consultant to work on this; and it may start as much as two years before the 10 years to get the General Plan amendments done and ready for the Council. But that€s the thrust of the first change there. And then the second, if you turn the page in Section 3, this has to deal with, this part deals with the difference between what the Council bill says and what the current procedures say. The current procedures say that the Council can initiate an interim General Plan amendment at any time except during the comprehensive review. And the Council bill says, well, the Council can initiate a General Plan Amendment at any time. 3EXHIBIT B The idea of a comprehensive review is so that you have a package of amendments that get looked at all at once. And they may be inter-dependent but they all get sent up to the Council at one time. So more of a spirit of compromise between the two, this sets a deadline so that the Councilcan be involved in the comprehensive review. The Council would get notice that thecomprehensive review has begun, would have a minimum of, the Director would set a deadline for the Council to send up proposedamendments, again, by this resolution procedure; and that would be a minimum of 120 days. And then we have, then the comprehensive review process is spelledout; and there€s some slight changes on the wording for that. And then there€s some changes, then we have discussion of how the interim amendments work; and, again, it changes it so that the current ordinance gave the Planning Director 120 days to make a recommendation on Council-proposed interim amendments.Thecurrentlawhasafunnyphrasewhichhasbeenthereforawhilethatthe Planning Director€s recommendation, it€s called the Feasibility Report‚ or Feasibility Study.‚ I don€t think that€s a very good description of what the Planning Director actually does on a General Plan amendment because typically things are going to be feasible. It€s just is it a good idea or not. So it changed it to be a recommendation rather than a feasibility study. And it gives the Planning Commission 60 days to make its recommendation to the County Council on an interim General Plan amendment, rather than 90 days. SIRACUSA:Could I just -? ALAMEDA:Commissioner Siracusa. YUEN:Yes? SIRACUSA:Okay. On what was No. 7 and is not 8, where it says, The Planning Commission shall conduct and complete its‚ and public hearings‚ is crossed out and review‚ put in. I just want to make sure that that review includes public hearings,‚ the public hearing process?‚ YUEN:Well, it only includes public testimony. And this is another change that we made, because we have this confusing issue that comes from the use of the word public hearings.‚ Because, under State law now, the Commission takes public testimony at our meetings when an item is considered, but only some things are called public hearings.‚ So, we€ve had, and the way the Charter is written out, we have public hearings‚ and then you close the public hearing.‚ And then you have meetings where you vote on the matter but people can still come and testify. And so this still requires, so we took the phrase public hearing‚ out completely and we say that you have to have at least two public meetings and you are going to have to have public testimony at those meetings. SIRACUSA:Okay. That€s what I wanted to make sure of, that we were not planning any smoked backrooms -. YUEN:No, we will still take public -. 4EXHIBIT B SIRACUSA:Okay. YUEN:There will still be publicly-noticed meetings. You still take public testimony. But you won€t have this point where we say, We are closing the public hearing and then voting on it at another meeting.‚ ALAMEDA:Right, which is kind of what we do now. We don€t really say we€re going to close this public hearing. Or we do, the Commission? YUEN:We do not, we normally don€t except few things that say you€re supposed to have a public hearing. So let me give an example. The SMA permits, you know, some people come in and we don€t notice that as a public hearing, that people want to come and testify, they come and testify; and,you know, when they€re done testifying, the Commission takes a vote. FortheCharter,becausetheordinancethatgovernsandsaysyouhavetohaveapublic hearing,‚ it has been advertised as a public hearing, then there€s a close of a public hearing, because that€s what triggers certain other follow-up dates. And that€s what we€re trying to eliminate, is that question of what does, how come we€re still taking testimony at the next meeting if we closed the public hearing. It becomes, I think, you know, it€s confusing even to explain it, but I think it€s more of a confusion when you have it in there as saying that you have this public hearing. ALAMEDA:I understand. Commissioner Graham? GRAHAM:First I€d like to ask sort of like a very background, historical kind of review. What we€re talking about here is County Council-initiated interim amendments sort of to the General Plan. And back like in the 80€s I was more involved in kind of community and environmental issues where there€s a lot of developers who come in with a project and the project would require a General Plan amendment, rezoning, SMA, all that kind of stuff. So to us as a community it looked like the developers were initiating the General Plan amendments; but here we€re talking about the Council. Is that just a technicality or have procedures changed? We don€t really seem to get that these days the way we used to get lots of them. YUEN:Well, even in those days, the General Plan, although the idea from it may have been instigated by a developer, the actual amendment was either, there€s either a Council resolution or a Planning Director initiation of the General Plan amendment. And if you go down and, even in the current amendment procedures, there is a formal way for an individual or a landowner to make a petition for their amendment to be considered. But if the Planning Director or the Council then don€t initiate it, it dies. And, again, the Charter currently says that only the Council or the Planning Director can initiate a General Plan amendment. This is different than a rezoning. The rezoning, the law, part of the Zoning Code governs how you do a rezoning. And if you are a landowner, for example, you can file an application for rezoning. And if the Planning Director, you know, the hair stands up on the back of my neck, I tell them I hate the idea, they have a right to bring that application and they have a right to have it heard here, and you guys can vote nine to nothing against it. They have a right to have that taken up to the County Council. And the County Council, you know, then can vote nine to nothing against it. But they have a right to initiate a rezoning and have it taken through the 5EXHIBIT B process up to a point of the County Council voting on it. They do not have that right with respect to the General Plan. Now, as a practical matter, there€s no, you can€t, it€s true that some of the amendments in the 80s, as I say, were the brainchild of the landowner, but they did convince either the Planning Director or, I think in most cases they were Planning Director-initiated amendments. They did convince the Planning Director to actually initiate the amendment. ALAMEDA:Commissioner Iwashita? IWASHITA:I have a procedural concern and that is, that arises out of the inclusion in the resolution on Page 2. How do I define this -. The paragraphs that begin BE IT FURTHER RESOLVED,‚ Nos. 2 and 3, I guess my reading of those, those are contrary, those are provisions which are contrary to the General Plan 16.2.1. The first one talks about a 60-day and the Directormentions60-daytimetorespond;andtheGeneralPlanrequiresaminimumof120 days. And then the following paragraph talks about the Director presenting a resolution within the same 60-day period which is, in my interpretation, contrary to 16.2. So, I guess, my view is: That this resolution, because it violates the General Plan, is not a proper resolution; and that I don€t think we should proceed with it at all; that if the Council wants to initiate this process it has to do it in compliance with General Plan 16.2, and it has not. It has attempted to start a process by placing conditions that are contrary to 16.2; and, therefore, I believe it should be ignored, and that we should send it back to Council and say do it over right, for one. The other concern I had is that, I understand the Director€s concern about the use of the term feasibility study‚ in 16.2, because it€s not a real clear and definite term. But I don€t see, I guess, has it ever been done, a feasibility study for an interim amendment? YUEN:I am just not sure whether there has ever been a Council-initiated General Plan amendment. Phyllis, do you, are you aware of any? I€m not aware of any. This is the first one that I€m actually aware of, and certainly the first one in the last, the only one in the last six years. IWASHITA:Okay. Well, my concern is that it doesn€t appear that what we have before us has anything that would, I would view, that complies with meeting that requirement of a feasibility study. So, whatever that is, and that I see it as problematic. But my main concern is really that the Council here by this resolution has violated 16.2 of the General Plan and we should not proceed until it does it correctly. ALAMEDA:Staff, I have a question. Actually -. YUEN:Let me -. ALAMEDA:Oh, go ahead. YUEN:Let me just make, first, the Be it resolved‚ that says that the Council directs the completion of the feasibility study and Planning Commission public hearing within 60 days from the transmittal date of this resolution to the Planning Director, I did attend the meeting when they discussed the resolution. And I agree with you that the Council cannot require this. 6EXHIBIT B I€m not sure if I said that but the Council Chair did say, We are simply requesting that thisbe done promptly.‚ That was that statement made. And it€s true that because the currentGeneral Plan, which is an ordinance and a law, says that the Planning Director has upto, I believe it€s 120 days to complete the study, I could have taken up to 120 days and I would have been within my legal rights. The Commission can also take up to the time that it has under the General Plan and it would be within its legal rights. And, so, and the resolution does not override the provisions under the law. There was a statement that was made at that Council that they do recognize that, what I just said. As far as the question of the feasibility study, the recommendation here is the closest thing to, it€s, again, that€s why we want to change the term feasibility study.‚ It€s the closest thing to, feasibility is not a good description of what one does when presented with a proposed procedure to change the plan. It€s, there are many, many feasible ways to do this. But it€s, and this is one of the feasible ways. But this is a recommendation here, is that, that it would be more feasible to changeittothethingthat€sbeingattachedasExhibit3. ALAMEDA:IhaveaquestionforMr.Directororstaff.Whatisouractiononthis?I see on the agenda it€s Review and comment.‚ We€re not, is that just what we€re doing, just reviewing and commenting and -. YUEN:No, it€s a recommendation -. This is like you would be doing on a rezoning ordinance; and it€s not for action today. Like other amendments of an island-wide nature, we wanted to agendize this for two meetings, one on each side of the island. So the first time that we would be asking you to vote on it would be, the next would be the November 1st meeting that we€ll have in Hilo. The action that the Department, to be real clear about this, the Department€s recommendation will be partly, the recommendation is partly that you recommend to the Council that they substitute Exhibit 3 for Exhibit 1 as a second draft of the ordinance and that you give a favorable recommendation to Exhibit 3. ALAMEDA:Commissioner Siracusa? SIRACUSA:Yes. I want to get back to what was No. 7 and is now No. 8 on Page 2 of Exhibit 3. And when I had asked about the public hearings and you were talking about notice to the general public and there€s a question of, you know, how if it€s a hearing, a public hearing, you know, it always generates public notice. And I just want to make sure that we€re not knocking the public out of the process here by just, by calling it a review and taking out the term public hearing.‚ Because I think that, certainly, proposed amendments to the General Plan are very important to the general public, and we should give them every possible opportunity to know about it and to be able to provide input to us. And, so, I would just like an assurance about that and, or if you don€t feel that it€s really clear, then possibly tweak the wording a little bit so that there€s no question whatsoever. YUEN:Under both current State law and your rules you would have to take public testimony. And I personally don€t see any chance of State law being changed that requires testimony, allowing the public to testify on agenda items at a public meeting. So I think that that€s safe. 7EXHIBIT B SIRACUSA:So whether we call it a public hearing or not we€re still required to do that and to notice the public? YUEN:Right. SIRACUSA:Thank you. ALAMEDA:That€s correct. Commissioner Watanabe, you have a question? WATANABE:Just so that I€m kind of clear, I guess Mr. Iwashita€s concern was that the County Council was kind of like out of order as far as proposing a resolution. But that said, I believe the Director is making this recommendation because he does feel like the rules need to be amended. And, so, this would be what you feel is a more workable type of procedure that could lessen the use and would be easier for the Department to comply with, and alsoyet provide some balancebetweenboththeCouncilandthePlanningDepartment,andthePlanningCommission? Is that where we€re at? YUEN:Right. Definitely I think that Exhibit 3 is better than the wording of the current procedures on General Plan amendments. I have to say that if it were not for the Council initiating this, it would have been a low priority to meddle with the amendment procedures which -. But, you know, they sent the bill down which essentially we either make a favorable or unfavorable recommendation on their bill standing alone or take the opportunity to look at it and see how others can be improved since they seem to want to take up this subject up at the present time. So, yes, I mean, I do think that the Exhibit 3 does significantly improve what€s in the current General Plan. ALAMEDA:Commissioner Watanabe? WATANABE:Follow-up. Yeah, I went through the Council€s proposal and it seems like you were working very diligently to make sure there€s some kind of balance between the power that is exerted, you know -. And so I kind of like your revisions, really. ALAMEDA:Okay. Let me see, we€re not taking any action today so just put all your comments on the table, whatever it is, get it out; and then go home, go review it, think about it, come back again, talk about it again. So I€m going to ask for final comments. All right. Commissioner Iwashita? IWASHITA:Thank you, Mr. Chair. I would like some direction from our Council, I guess, about the concerns I raised on that language directing, making directions as far as timeframe which are contrary to the General Plan 16.2 and what effect, if any, it might have under the validity of the resolution. And don€t have to be today, it can be at our next meeting when we consider this again. Cause I don€t want to proceed, you know, if it can be argued that, you know, the process was initiated contrary to law; and, therefore, you know, we can go through this whole process, and it€ll be challenged in court by someone who doesn€t like you, and then it€ll be thrown out. So I want to make sure it€s started properly. I do agree it should be a low priority in terms of where we spend our time because in the big picture the General Plan is supposed to a document that is considered and adopted and intended 8EXHIBIT B to be one that controls at least for 10 years under the timeframe. And, so, any kind of interim amendment process shouldn€t be made easier to me. It should be one that, you know, I don€t see any real problems with the timeframe, this 240 days and all of that, because I think any proposed change to the General Plan, which is always in this forum, argued tobe,you know, it complies to the General Plan, so it has to be good. We should protect the integrity of the General Plan and maintain a process so that it can. If the General Plan can be changed as easily as doing a zoning, zoning change, then it€s not, you know, the perception is going to be it€s not thislong-term planning document. If we think something else needs to be done with this particular part of our island that, no problem, we go for the zoning change, you can go for the GP amendment, same process, and we€ll get it done, that€s not how it€s supposed to be. The case law makes it real clear, cause the General Plan is supposed to be a long-range planning document. Ten years is sort of a minimal timeframe to me as far as long-range planning, but that€s the timeframe that we€re working with. So that the amendment process, again, to me, should not be minimized or made easier. If anything, we should be looking at it, any amendment process as one which protectstheintegrityoftheGeneralPlanasalong-rangeplanningdocument. ALAMEDA:Anycomments?CommissionerSiracusa? SIRACUSA:OnPage4,2D,Exhibit3.We€restillonExhibit3.Iknowthey€renot numbered, I just counted back. It says, The Planning Director shall notify a property owner of a proposed amendment that would redesignate its property to Open or Conservation, unless the property is already designated Conservation,‚ da, da, da. Well, why isn€t it also unless the property is already designated Open.‚ I don€t understand why you left Open out there. Could you please explain that to me? YUEN:Yes, this has to deal with one set of designations as the General Plan Land Use Pattern Allocation Guide Map designation; and then we refer to the State Land Use Commission designation, that€s the State Land Use designation, is Conservation. So that€s, and it does get a little confusing cause the same terms are used; but there are areas that are in Conservation under State Land Use Commission that are not Conservation under the County General Plan. So, actually, this is, this section although is what we would, this is one of the, this is actually a section that already is a requirement when the Planning Director initiates such a change. That is part of what we put in. There€s another requirement before it. Some people felt that it€s such a significant effect potentially on the landowner that the landowner should be notified. Other than this, there are no landowner notification requirements for General Plan amendments at all. All right? So because the General Plan does not in itself change the zoning with the use of the property, so, but, you know, certainly, that change to Open or Conservation could affect the landowner€s range of options. So when the Planning Director, under the current law, when the Planning Director initiates a change to Open or Conservation, you have to notify the landowner. But it doesn€t say that for when the Council initiates a change. So we really should be consistent and, you know, the effect is the same. So this just puts it in for the Council-initiated amendments that the landowner has to be notified. And the provision of, unless it€s already designated Conservation by the State Land Use Commission, that€s just because, all right, they€re already in the Conservation District, all right, so you€re just making the County, you change the County General Plan to be Conservation as well. Maybe that is not such a drastic change for that landowner and that, again, that€s consistent with what€s already in for the Planning Director-initiated amendments. 9EXHIBIT B ALAMEDA:Commissioner Siracusa? SIRACUSA:So then just to make sure I understand you properly, the stress there was not on the Open or Conservation part because, you know, but to stress the notification of the property owner and to make it consistent with Council-initiated changes? YUEN:Right. ALAMEDA:Any other comments? Commissioner Iwashita? IWASHITA:Just a question of why the timing or why there€s a difference, I guess, in the timing requirements between the proposed changes and the existing language in 3, which is for general public-initiated changes, interim changes? YUEN:Well, there€s a separate section on, that€s related to what we just discussed withCommissionerGrahamonhowifamemberofthepublicwantedtoinitiateaGeneralPlan change and there€s a formal process for doing that, and rather than, I think under the 3, under the current ordinance there€s a separate procedure for how that happens. And what this bill, what Exhibit 3 would do is just say if the Planning Director decides to initiate the change, and we process it the same as any other Planning Director initiated interim amendment, and if the Council decides to initiate the change, then it€s processed the same as any other Council-initiated interim amendment, rather than having a third set of procedures that apply to these public, initiate is the wrong word but publicly-requested General Plan amendments. It€s a simplification, I think. ALAMEDA:Commissioner Iwashita, follow-up? IWASHITA:Well, so why should the period for the, your review be shorter in a Council-initiated amendment as opposed to a public, someone from the public initiating an amendment? There€s 90 days in the Council-initiated; and it€s 120 in the public-initiated. Why should there be a difference? YUEN:Are you talking about the C that says Upon receipt of a properly filed initiated application, the Planning Director shall have 120 days to take one of the following actions?‚ IWASHITA:Yeah. Yes. YUEN:Yeah, that€s not a change. That part is, first of all, it€s not a change, that€s the current law. Second, the context is a little bit different. Because if the Council, if the Council is initiating a General Plan amendment by resolution, the Planning Director has advance notice of that. It€s at the Council, you know what€s on the Council€s agenda, you see that this is happening. And then we have a timeframe, you know, once they pass it, you know, the ordinance would give you 60 days to review that. Under this procedure, though, if the public, this is just giving the Planning Director 120 days to make a decision whether to initiate the General Plan amendment that the public is requesting. All right? Then once the, if the Planning Director decides to initiate that amendment, then that goes into the same process as a Planning 10EXHIBIT B Director-initiated interim amendment, which means that the Planning Director holds a workshop, and then the Planning Director submits it to the Planning Commission. So, the Planning Director, it€s giving the Planning Director 100 ƒ Well, let me back up. If the Council initiates the General Plan amendment by resolution, the Council has already formulated the amendment. Now, if it comes from the public, first of all, you don€t have the advance notice, it just arrives on your desk; and, second, you have to decide whether to formulate that. You may want to re- formulate that, from what the public has, and then the Planning Director is initiating actually a Planning Director amendment that has, probably has the substance of what the public had but may have some changes; and then you go through this process. Now, if the Planning Director wants to initiate an amendment on his or her own, the Planning Director may take a year, you know, trying to figure it out. There€s no timeframe for the Planning Director to be formulating the amendment. Then the first stage is that it gets announced and there€s a workshop on it. So this is just giving the Director 120 days to work on this amendment that comes from the public. IWASHITA:IguesstheotherquestionIhaveistheredoesn€tseemtobewhat€sthe consequence if the Director doesn€t meet the time deadline? It€s not stated. WATANABE:Well, I don€t think the Director has to, I don€t think, I think from earlier there€s -. We were talking about a public-initiated, right? IWASHITA:No. Under any of these provisions, it doesn€t, there€s no statement of consequence. What happens if the Director doesn€t fulfill the requirement? In other words, if the Director doesn€t, in the Council-initiated within 90 days forward recommendations or if the public, you know, if the Director doesn€t take action within the 120 days, there€s no statement in any of this about what, you know, what€s the effect on the proposed amendment? YUEN:Well, clearly, it doesn€t go forward. If it€s not initiated by the Director, by Charter it cannot go forward, if it is not initiated by either the Director or by the Council, you see. IWASHITA:So you€re saying like in the public part of it in 3, if there€s no expressed rejection, and obviously no initiation, then it just dies by default? YUEN:Well, then, actually, under E, at that point, the Council -. You see, if the Planning Director rejects the amendment, all right, well, the individual, if the Planning Director actually rejects the amendment, then the public member can go to the Council and ask for a resolution under E. IWASHITA:No, I€m saying that, yeah, I understand that. That€s what it says here. There€s no statement here if the Director does not take action, does not reject, does not initiate, there€s no statement here about what the effect of that is. And one of the things that is possible is the public, the member of the public can say, Look, I submitted it, the Director didn€t meet the requirement, I€m going to court, have the court order that the amendment process be, go forward cause the Director is not doing what the Director is supposed to do.‚ YUEN:No, I don€t think that that€s a possible outcome. The most that could happen, the most that could happen, and then it could be a clarifying point added to E, is that the applicant can then consider the application to have been rejected and take it to the Council, under 11EXHIBIT B E. You see, if the Director takes action in 120 days and rejects the application, all right, then E kicks in; and then the private person can go to the Council and try to get a resolution. Right? And I would say, you know, without changing the language that if the Planning Director doesn€t do anything in 120 days, then the person can go to the Council. If that€s necessary to add as a clarification to E, that€s fine as well. You can simply say that if the Planning Director rejects an application or if the Planning Director does not act within the 120 days, then the applicant takes it to the Council. Cause the Planning Director€s inaction cannot override the Charter requirement, that either the Council or the Director are the only ones that can initiate a General Plan amendment. Plus the ordinance does give a recourse to the member of the public who has their application rejected by the Planning Director, they can go to Council. This is, again, the basic framework of this is the same as the current law; and it€s meant to have an orderly process. The public should first go to the Planning Director to initiate the amendment if they want to initiate it and then they can go to the Council. ALAMEDA:CommissionerIwashita? IWASHITA:Thankyou,Mr.Chair.TheotherpointInoticedisthatintheproposed amendment, the limitation of initiating an amendment to exclude the comprehensive review period is deleted from the Council- and Planning Director-initiated amendments but retained in the general public-initiated amendment. Why is that? YUEN:The ordinance, Exhibit 3 says that the Council can initiate an amendment at any time except during, they still cannot do it during the comprehensive review after this deadline that I talked about. So at the very beginning in a comprehensive review, the Planning Director sends notice to the Council that, Hey, the comprehensive review is starting -.‚ IWASHITA:Sorry, I would think the wrong one -. ALAMEDA:Commissioner Iwashita, would you like the Director to consider the language change on the inaction of the Planning Director? IWASHITA:I guess, well, I€m bringing these things up, these are my present concerns. My main concern really is that we follow the proper process. I don€t think, and I guess I€d just like to make, get a clarification that we will get our Counsel to research and make a report to us on whether or not, you know, my technical kind of legal concerns are appropriate. ALAMEDA:Mr. Torigoe, are you comfortable looking into Commissioner Iwashita€s concerns about protocol? TORIGOE:Yeah, sure. Just to clarify, you€re mostly concerned about the second or third, the third BE IT FURTHER RESOLVED,‚ and the fourth, and the possible conflicts with the current General Plan procedure? IWASHITA:Yeah, the language I€m concerned is BE IT FURTHER RESOLVED that the Council directs the completion of the feasibility study‚ and Planning Commission public hearing within 60 days from the transmittal of this resolution to the Planning Director,‚ which is contrary to 16.2, and then the following paragraph which directs the presentation of an ordinance, proposed ordinance within the same time period. 12EXHIBIT B ALAMEDA:Okay. Mr. Torigoe? TORIGOE:I€ll take a look at that. ALAMEDA:Thank you very much. So we€ll take a look at that. We€ll consider some of the comments that were made earlier. Also, let me check with Commissioner Graham before we start winding this up. Commissioner Graham? Any thoughts? GRAHAM:What€s that? ALAMEDA:Any thoughts? You grabbed the mike so I thought maybe you€d like to -. GRAHAM:I don€t have anything further to add right now. ALAMEDA:Okay. Commissioner Galdones? Anything to add to this discussion? GALDONES:No. ALAMEDA:Commissioner Rho, anything to add? RHO:No. ALAMEDA:Commissioner Watanabe? WATANABE:No. ALAMEDA:All right. There€s no testimony, unless -? PUBLIC:No. ALAMEDA:Okay. Just listening? PUBLIC:Yes. ALAMEDA:All right. So seeing there€s no testimony, Mr. Director, is there anything else to add? YUEN:No. Thanks. ALAMEDA:Okay. So we€ll be re-visiting this again at our next meeting. Mr. Darrow? Any action I need to take or -? st DARROW:Well, this would be a continuance of the matter until November 1, so we ifcan-. ALAMEDA:Seeingnofurtherobjectiontocontinuingthisatthenextmeeting,we€lldo that. So noted. 13EXHIBIT B The discussion ended at 11:25 a.m. Respectfully submitted, Sharon M. Nomura, Secretary 14EXHIBIT B