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HomeMy WebLinkAbout2006-11-01 tcouncil PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT NOVEMBER 1, 2006 A regularly advertised hearing on the COUNTY COUNCIL€S DRAFT ORDINANCE REGARDING THE GENERAL PLAN AMENDMENT PROCEDURE was called to order at 11:06 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, ST Hawaii with 1 Vice-Chairman Bill Graham presiding. PRESENT:Bill GrahamABSENT & EXCUSED: C. Kimo Alameda Fred Galdones Jeffrey McCall Andrew Iwashita Alvin Rho Allen Salavea Rene€ Siracusa Rodney Watanabe Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Planning Program Manager PhyllisFujimoto,StaffPlanner Jeff Darrow, Staff Planner And 4 people from the public in attendance. INITIATOR: COUNTY COUNCIL Review and comment on a draft ordinance regarding the General Plan amendment procedure. GRAHAM:Next item on our agenda today is Unfinished Business, is review and comment on a draft ordinance regarding the General Plan amendment procedure. This was initiated by the County Council and presented to us by the Planning Director. And we discussed this at our last hearing in Kona, which was very recent. If there€s anyone here from the public that wants to speak on that, please be sure to let Sharon know so that we can get you on the schedule here. Let me just recount briefly, and Mr. Torigoe you can correct me if I€m not on base here. But basically we brought it up last time, we planned to have it at least at two meetings, the Kona meeting and today€s Hilo meeting. We can take action today, although we€re not required to, I believe, at the Hilo meeting. Also we had an issue brought up by Commissioner Iwashita regarding the specifics of the resolution passed by the County Council, being that the specifics of that resolution seemed like they weren€t quite in conformance with the existing legal basis that we operate under. And I think maybe Mr. Lincoln Ashida, who€s one of our testifiers today, will speak to that for us; and I€m sure we also would like to hear from the Planning Director again. Mr. Torigoe, how would you suggest I go forward at this time? 1EXHIBIT B TORIGOE:Well, there€s no specific sequence that you need to take things in. I see Mr. Ishida is ready to testify. I think his testimony isprobably going to be germane to the consideration of the issue regarding the attempted change in the timeframes that the resolution presented; and so it might be a good idea to hear from him so that he can inform us on the on- going discussion. GRAHAM:Okay, to follow that matter then, Mr. Ashida, do you swear and affirm to tell the truth before the Commissioner here today? ASHIDA:I do. GRAHAM:Thank you. You may be seated. ASHIDA:Thank you. GRAHAM:So I think as Mr. Torigoe indicated, the particular resolution had some timefamesforactionwhichwerenotwhatweexpectedperhaps.Andsothat€stheissueIthink Mr. Ashida is going to address today, along with whatever else he would like to. So could you give us your name and also your address and give us your testimony, please, Mr. Ashida. ASHIDA:Yes, sir. Good morning, Chair Graham, Members of the Planning Commission. My name is Lincoln Ashida. My address is c/o Ivan Torigoe at the Corporation Counsel€s Office, 101 Aupuni Street, Hilo, Hawaii. And my purpose here today guised under testimony under unfinished business is actually a checkup on Ivan, and I see that he is doing a wonderful job, as always. Thank you for hearing me today. I wanted to come today to address any and hopefully allay any concerns that the Commission had regarding the resolution which was forwarded to you by the Hawaii County Council. Ivan had shared with me late yesterday Commissioner Iwashita€s concerns regarding the possible illegality of this resolution. And I wanted to just provide you a little bit of background about the genesis or the origins of this resolution and how it came about. First and foremost, I wanted to apologize for any impression that this resolution gave to the Planning Commission that for some reason the County Council was trying to be overbearing or trying to, you know, overstep its authority. I can attest that clearly that wasn€t their intention or the case. I feel somewhat responsible because I do advise the Hawaii County Council. And obviously when this resolution was in its, being created, you know, questions came up. The same questions that you€re considering today, you know, the congruence with the General Plan, whether something like this is legal or not. And I can assure you that the Hawaii County Council fully understands and appreciates that this resolution was merely, simply amounts to nothing more than a request on their part, a friendly request on their part to consider perhaps expediting the return of the interim amendments so as not to, you know, go beyond the, or not to take the amount of time as provided for in the General Plan. It was not intended to be a mandate saying, hey, you know, Planning Commission, Planning Director, we€re requiring you to hurry up and, you know, resubmit within an earlier period of time. I think part of what, some of the Council Members, as you know, are going out come the first Monday in December and, you know, perhaps part of their motivation was, you know, wanting to be able to act as a Council on some of the matters that come before them. So that principally 2EXHIBIT B and primarily was what this was all about. So, really, my presence here today was just to apologize for any misunderstanding there was and to assure this Commission that the County Council is fully cognizant and aware of your authority,your responsibilities, and they would not do anything to violate that in the least bit. You know with that, I€d be more than happen to address any questions that you have or carry any message back to the Council on your behalf. GRAHAM:Thank you, Mr. Ashida. Do we have any questions from the Planning Commission Members? IWASHITA:I do. GRAHAM:Mr. Iwashita? IWASHITA:Thank you for being here today. I understand that under the General Plan interimamendmentsectionthatanychangesinparticulartothispartoftheGeneralPlanwould require initiation by the Council with regard to this resolution. I€m, and I guess so that because it is a resolution it doesn€t have -. Well, I€m a little, I€m sorry, but I€m a little skeptical about, you know, proceeding and not following the exact the letter of the law, in this case 16.2, because of any prospective future challenges. And even understanding the distinction between an ordinance and a resolution, and that the ordinance is law and the resolution is not binding law, still my concern is that if the process is initiated in a perceived wrongful way and if ultimately it is so held to be wrongful, then whether or not it€s law, you know. Because the process is Council does a resolution, and then the Director responds, makes a recommendation to this body, this body takes action, and then it goes forward back to the Council with a proposed form of an ordinance. So that the end resolution of the resolution, you know, the triggering resolution is law. Right? So that I believe, I€m hesitant, you know, I, especially cause of Hokulia, that things are done to the letter of the law. And I understand with respect to the spirit of the law. But to me we really, in really taking action here, I don€t want to take an action where, you know, some question can be raised as to complying with the letter of the law and, therefore, not properly initiating this process. So that would be my main concern, or that€s still my continuing concern about that. So I don€t know if it€s appropriate for you to respond to that or that€s an executive session matter. But that is still a residual concern that I would have. The other concerns I have about this is that 16.2 requires a feasibility study and the Director has already mentioned that that€s an ambiguous term and hard to define. I have a problem right now in looking at all the papers that have been presented as to whether a study, not to mention a feasibility study, has been done and reported on back to the Commission. So that is another concern. And I guess I would appreciate, I don€t know if you have any comments, but that is a residual concern that also I have. Thank you, Mr. Chairman. GRAHAM:So, Commissioner Iwashita, you didn€t ask direct questions but you€ve made known your areas of inquiries. So if Mr. Ashida has any comments on that, we welcome them now. ASHIDA:No comments. You have competent counsel that can advise you appropriately. GRAHAM:Mrs. Siracusa, you have a question? 3EXHIBIT B SIRACUSA:Yes. We know that not every issue that comes before the Commission or the County Council was a slam dunk; and certainly an interim amendment to the General Plan is something that€s very important. And some things take longer than others; sometimes one body or the other might want more research done on a question. And to limit ourselves timewise seems to be counter-productive in terms of getting the most information so that we can make the most appropriate decision. And would you say that the part of this that says that the County Council can grant an extension in time would be the wiggle room that would allow for that, or is there no process there to take extraordinary circumstances and need for additional data into consideration? ASHIDA:Thank you for that question. Again, I think it comes back to that, this was not by any means a mandate of the Council. I think it can best be summarized as if can can, if no can no can. That€s essentially what they€re saying. But if you€re talking specifically the languageintheresolutionregardingtheadditionaltime,isthatwhatyou€rereferringto? SIRACUSA:Yes. ASHIDA:Okay.Again,youknow,it€snotasituationwheretheCouncilis mandating anything other than what Commissioner Iwashita has already indicated or recognized as the requirements as set forth in the General Plan with respect to the time requirements. So, you know, that to me is the outer boundary. It€s not the Council€s resolution. It€s the timeline as set forth in the General Plan. SIRACUSA:May I? GRAHAM:Yes, go ahead, Commissioner Siracusa. SIRACUSA:Yes, well, somewhere in here and with all this paperwork it may not be so easy to find again, oh, here we go, if the Planning Commission fails to act on a proposed amendment within the required period it shall be deemed a negative recommendation. And that€s sort of doing things by default. I€ve always had problems with that sort of thing. But if the Planning Commission fails to act because they need more information, you know, and say the County Council doesn€t give it to them by granting an extension, that€s the sort of thing that is causing me some concern. ASHIDA: I see. You€re talking about the language in the General Plan itself, right? SIRACUSA:Yes. Well, this was an addition here. I€m looking at a Ramsayered version of the Director€s proposed changes to the Council€s resolution. GRAHAM:Commissioner Siracusa, excuse me, I think the issue we€re looking at right now is kind of whether the resolution that brought this whole thing to our attention was properly crafted or whether it itself was not in conformance with the existing General Plan. And the contents of what€s suggested for us to come forth with as far as how we would like interim amendments to be handled in the future is kind of something we€re going to get into if we continue at this point. And the question just is whether it€s okay to continue given the resolution that we€ve got. 4EXHIBIT B SIRACUSA:Thank you. I stand corrected. GRAHAM:Well, I€m not correcting, but just hold off a few minutes if you would. Thank you. Any other questions for Mr. Ashida? Thank you very much. Okay, anyone else wishes to testify on this at this time? Mr. Torigoe, how would you suggest we proceed at this point? TORIGOE:Well, I did provide you with a short memorandum. It€s just kind of a basic opinion in response to the issues that were raised. And I think it€s very good that Mr. Iwashita raised those issues at this point in time early in the process because I think it allows us at this point to actually remedy any problems that might arise from the kind of language that was put in the resolution. I did the memorandum as an attorney-client privilege document mainly because I want us to basically start with that assumption. Whenever you ask me for a particularopinion,youshouldalwaysstartwiththeideathatyouhavetheabilitytohave confidential attorney-client privilege communications with me should that be appropriate. But if you feel that you would want to just open this up on the record and have a discussion on the record, that is your prerogative also. In this particular case, obviously, if it€s a matter of our discussing a contested case hearing matter that, and you€re asking me to discuss the relative merits of positions that you may take and possible weaknesses of positions that you may take, you don€t want to do that on the record. Because if I have to defend your decision later, then that€s going to be used against you. In a case like this where we€re dealing with a procedural question that doesn€t really pertain to a substantive decision that you€re going to make, if you would prefer to discuss this on the record, I have no big problem with that in this case. So I€ll leave it up to you. You can call for an executive session, we can talk about it more on the record or off the record, or if you€re satisfied with whatever I€ve written, then you can just proceed on that basis also. GRAHAM:All right, thank you. I personally have not read this closely. But are you suggesting that there is some kind of remedial action we can take as we begin our deliberations that would sort of more clearly pave the way for us without the legal cloud that Commissioner Iwashita is worried about? TORIGOE:I think at this point since, again, it€s early in the process, basically you can look at what, take what Mr. Ashida has communicated to you, that basically the process that he observed at the County Council was not meant to really change the timeframes but it was really meant to simply request that the matter be expedited if possible, and looking, and also based on what I€ve told you, I think you can basically ignore the attempt by the Council to shorten the timeframes that you have to work with. And that would also apply to the Planning Director, that if the Planning Director feels at this point in time that he needs to take more time up to the 120 days that the General Plan allows him, I think that we could allow him to do that. However if on the record he says that, no, he€s satisfied that he has had enough time and he€s happy, you know, to send either recommendation at this point, then you can run with that; and you as the Commission, I think if you feel that you are ready to do your recommendation today that€s fine, you can do that. But if you feel that you need to take the full 60 days after you receive the Planning Director€s recommendation, I think you should feel free to do that as well. So that I think would be remedial in that we would basically be saying at the very start of our process that 5EXHIBIT B regardless of what the wording of the resolution says regarding timing, we are going to comply with what the General Plan says. GRAHAM:Thank you. That sounds pretty clear to me; and so I would like to just sort of indicate to everyone that we do have timeframes given to us in the resolution but that we€re understanding from what Mr. Ashida said that the intention was not to legally restrict us in any way to those timeframes even though they read like that in some instances. And so that we€ll go ahead andproceed as if those are suggested timeframes but we will use whatever time we need. Does that sound okay to you, Commissioner Iwashita? IWASHITA:Procedurally my concern still is that, I understand the suggestions by Mr. Torigoe. And the body of law that I€m concerned about with is that where an act by an official body is contrary to law, right, then that act is of no effect. Okay? So I don€t see how this body, if that principle were applied to this situation there€s nothing this body can do to correct thatillegalitybytheCountyCouncilinattempting,ifit€sfoundthatthewordsherethatthe Council directs the completion of the feasibility study, so forth, that those are mandatory and not suggested, you know, and whether or not Mr. Ashida€s testimony today can cure that interpretation by itself. So that is my residual concern; and so I still have hesitation about proceeding with this resolution. And, to me, the cure would be if that theory is going to be applicable ultimately it€s for the Council to redo this correctly. GRAHAM:Okay. So, Commissioner Iwashita, we might be heading for a place where we€re going to take a vote on whether we want to proceed with the understandings we have or whether we would choose not to proceed and ask the Council to redraft their resolution. So I€m just putting that forth as how I see it. Commissioner Watanabe? WATANABE:I have a question for Mr. Torigoe and also the Director also, based on Mr. Iwashita€s concern. I don€t have as much of a concern, but based on Mr. Iwashita€s concern would we be able to remedy the situation by the Director addressing like a cover letter to the Council indicating that we were not bound by that resolution for the facts that you stated, you know, with regard to the timeframes and that we are following, it€s our understanding that we are following the existing timeframes within the General Plan; and that because the General Plan also allows for the Director to initiate a change then reword this to something that states that the Director is reinitiating this change and proposing that to the Council for approval or recommend -? You see what I€m saying? Just turn the whole process around. I mean, to me the work has been done already. YUEN:First -. GRAHAM:Go ahead. YUEN:You know, I think our legal advice has been that there is no problem, that I think it is abundantly clear to the Commission that they are not being mandated to make a decision in less than the timeframe called for, and so the Commission should not feel that it has to. For the record, I understood that I also had the timeframe allowed by the present ordinance, and I did not rush or short cut the analysis in order to meet the timeframe that the Council had requested. The recommendation that we have here which, and by the way, as I mentioned at the last meeting the background and recommendation is a feasibility study called for by the current 6EXHIBIT B ordinance, this is the same recommendation that we would make if we had taken 120 days. It€s just that we took less thanthe required maximum amount of time to do that. The ordinance allows you to take less than the maximum time; and if the Commission is ready to make a decision today and send its recommendation up to the Council that€s great. If it€s not, then this matter gets carried over to another meeting to discuss and consider again. SIRACUSA:Mr. Graham? GRAHAM:Thank you, Mr. Yuen. Yes, Commissioner Siracusa. SIRACUSA:I have a question for Mr. Torigoe. Everyone is talking about it€s a resolution it doesn€t have the force of law. But all the paperwork in front of me is, you know, drafts for a bill for an ordinance which would amend the General Plan, on the General Plan Amendment Procedures. Would you please clarify that for me. TORIGOE: Thank you. When we€re talking about a resolution not having the force oflaw,we€rereferringto,ofcourse,thatResolution430-06whichtheCountyCouncilusedto initiate the proposed amendment which would streamline the General Plan Amendment procedures. So ultimately, yes, ultimately the result of the process would be a change in the General Plan and in those procedures, which is a change in the law. But the thing that kicks off that process is a resolution; and a resolution does not have the force of law except as it may be provided for in law. In this case, the resolution from the County Council has the force of law only to the extent that it initiates the amendment process and directs the Planning Director to start the process, do his report and recommendation, feasibility study, whatever you call it, to the Planning Commission. SIRACUSA:In that case are we going to be voting on a resolution or an ordinance? TORIGOE:What you will be doing is making a recommendation on the proposed amendments to the General Plan and sending that recommendation to the County Council for their action. SIRACUSA:Ordinance then? TORIGOE:Right. With respect to the initial question that was raised by Mr. Iwashita, Commissioner Iwashita, as I said, it€s good that he raised this question; and it is always possible that someone could try to challenge an action that you take. And the language that the Council put into this resolution that we€re talking about 430-06, you know, it does seem more mandatory than apparently they intended it to be. So there€s always a possibility that somebody could try and challenge, you know, based on that language. I think though in a case like this that because it is really possible for us to remedy any harmful effects of that language, basically, on the record, we have the Planning Director saying that, no, you know, he wasn€t influenced by that language directing a shortening of the timeframe. And if the Planning Commission also on the record recognizes that the language in the resolution really does not have the power to cause you to shorten your timeframe under the General Plan for review of this amendment, then basically on the record it seems like there€s no harm done, you know, that everybody recognizes that this really did not 7EXHIBIT B shorten your timeframe. And so even if somebody were to sue on this it would seem that, you know, the court would look at this and say, you know, I see what you€re saying but no harm here. And so it€s hard to see where anybody would even have standing to bring such a lawsuit. So, you know, onthat basis, that€swhy I feel comfortable in saying that it€s okay for you to go forward. Of course, you always do have the option. You€re the ones who are goingto have to make the decision on whether you go forward, or you could even decide to go forward but recommend that the Council redo it because you feel like, you know, the language that was put forth is just, just seems too unclear. But basically in the end because it, it just seems to me that it€s early enough in the process that you can remedy any perceived harm. I think it€s highly unlikely that there would be a challenge and even less likely that such challenge will be successful. GRAHAM:Thank you. Commissioner Watanabe? WATANABE:AsIstatedearlier,I€mnotasconcernedasMr.Iwashita.Andbasedon the subsequent discussion that has followed, I€m ready to make a motion if that€s in order. GRAHAM:Hold on just a second. Making a motion with regard to this procedural issue that we€re discussing right now or making a motion in regard to the content? I think we€d want to have a presentation by the Director and some discussion on the content before we finish with this agenda item. WATANABE:Oh, okay, well, I guess we€ve heard it before, but I don€t know that you need a motion for the procedural issue, or do you want -? Why don€t we just do a voice, any opposed or whatever? GRAHAM:Okay, let me catch Mr. Iwashita€s read on this at the moment. IWASHITA:Thank you, Mr. Chair. I guess in an exercise of caution to me at minimal what this body should do is at least go beyond the directed time periods that the Council has so that what Mr. Torigoe said would be more true; and that is that if we took more than the 60 days, right, then it can€t be said that we acted within, you know, within the timefame, but, one suggestion. Two, another procedural point that, you know, the resolution that was sent down had a proposed ordinance attached to it in which the Council-directed amendments to 16.2; and that goes on for 2 ž pages or so. The Director€s response, and the resolution itself speaks of 16.2 and quotes the language in 16.2. The Director€s proposed ordinance, the one we had last time and the one we have today, has changes for 16.2 but adds changes to16.1, which is not what the Council asked for. So I have some concern about the proposal by the Director that basically goes beyond what the Council asked to have done. So that€s an additional concern that I have about proceeding with this matter. GRAHAM:Mr. Yuen, would you like to comment on that question? YUEN:Yeah. First we are actually beyond the 60 days. This was transmitted to thth the Department on, I believe, the letter is August 29,wereceiveditAugust30;andtheonly way we, we were not able to put it on the agenda in a normal, early October meeting, it was 8EXHIBIT B cancelled because of the HCPO Conference. So the first meeting we could put it on wasOctober th 27; and because of the desire that we normally want to have these issues with an island-wide th impact heard on meetings at bothsides of the island, we scheduled it for both October 27 and st November 1, understanding that that put us beyond the 60-day timeframe and also understanding specifically that that was not a legalrequirement or a mandatory direction by the Council. So, first point, we€ve already done that. The second point on the, the resolution also asked that the Director look at the amendment procedure as a whole, apart from the Council-initiated amendments, because there are some ambiguities in the existing amendment procedure. So, and in looking at the amendment procedure as a whole, that€s the result of, so then we redrafted some of the other sections. Procedurally, the way this would work is that this would, the Council gets their own bill back and the Council can always act on the bill that they drafted and pass that exactly as is if they want, or within limits they can make changes at the Council. When I say within limits they can€t change the intent of the bill, they can€t change the substance, they can€t make major changes of substance of the bill unless, that would create a new amendment. Procedurally, what our proposal is that the Council would substitute this bill that we have as the Planning Director€s draft as, for the Council€s bill as a Draft 2. That€s the Director€s recommendation to the Council andourproposedrecommendationtotheCommission. So,andI€vediscussedthiswithMr.Torigoeastoisthiswithinthescopeofchangesthatyou can make to a bill at this stage or at the stage of the Council; and he says, yes, it is within the scope of changes. Correct, Ivan? TORIGOE:Yes, I€d agree. GRAHAM:Commissioner Iwashita? IWASHITA:So the language, I€m looking at the resolution and on page 2 after the last WHEREAS,‚ the first NOW, THEREFORE, BE IT RESOLVED‚ talks specifically about the Ordinance No. 050-25, which is the, I€m sorry that€s the procedural ordinance. It refers to Exhibit A which is the proposed ordinance affecting 16.2 alone. And the following paragraph says BE IT FURTHER RESOLVED that the council requests the planning director to study ambiguous provisions, conflicting and contradictory language, and reasonable aspects of timing.‚ I don€t, you know, to me that relates back to the two paragraphs before where it talks about the County Council wishing to rectify the ambiguity or there claims to be ambiguities and wishes to have more efficient process in these interim amendment procedures by initiating amendment to 16.2 of the Hawaii County General Plan. So I don€t see that as being able to, unless there€s some other language, I don€t see any of what I€ve read here to allow amending anything other than 16.2. GRAHAM:Taking procedurally again, Commissioner Iwashita, you had a two-part a few minutes ago, a 2-part concern, one as the timing for our action and the other now is also just what is the scope of the substance of what€s going to be our end product here today. It would seem to me that we could kind of split those. And if we can kind of come to an agreement that we want to go forward, then we can go forward. And then once we deal with the content of what we€re going forward with, we can deal with whether we want to drop that 16.1 out or not. Does that sound proper to you? 9EXHIBIT B IWASHITA:Well, the problem is notice. Because under 16.2 which we€re supposed to be following, you know, we€re suppose to have public hearings, you know, which this is being construed to be one of the public hearings; and notice is supposed to be given of what we€re considering. And if in fact we€re considering more than what, if the notice given is that we€re considering more than what we€re supposed to be considering, then arguably again that is defective notice. And I suppose that can be remedied by, we can try to remedy that. But I don€t see again, well, again, I just see these problems; and, you know, I would like them rectified. Well, frankly, I€m really uncomfortable with going forward and, you know, to me, ideally the best solution is, you know, let€s start allover again, get it right, and so there would be no questions. And I don€t, you know, we€re talking about amending the General Plan. This is a matter of great substance and policy for the County and for the future of the County. And so I don€t see a great rush to get this back to the Council and that we can, you know, start the process over again; and that would be my preference. GRAHAM:Okay. So I think we€ve got all the issues on the table; and probably we shouldtakeanactionherejusttomovethismeetingalongastowherewe€regoing.Somaybe I€ll do that in just a minute, but we€ll first hear from Commissioner Watanabe. WATANABE:Okay. I earlier suggested maybe we should just a voice call. But to push, to press the issue, I€ll move that we accept that we are procedurally clear to move forward and discuss this revised recommendation on the Ordinance 05-25, so that would be my motion. GRAHAM:Is there a second? GALDONES:I second. GRAHAM:Second by Commissioner Galdones. Mr. Torigoe, do you have any comments on this motion as to whether it properly reflects what we€re trying to do? TORIGOE:No, I don€t think so. It€s pretty straightforward, I think. GRAHAM:Okay. SIRACUSA:Could you repeat the motion, please. I had trouble hearing you. WATANABE:I€m moving that we accept the fact that we are procedurally clear to move forward and discuss the proposed revisions to Ordinance No. 05-25. GRAHAM:Is that clear now, Commissioner -? SIRACUSA:Yes. GRAHAM:Thanks, good. Do we have any discussion on this motion by Commissioner Watanabe? Commissioner Iwashita? IWASHITA:I just wanted to reiterate for the record on this motion that really, you know, what we€re talking about in terms of what this body does is probably one of the most 10EXHIBIT B important things that we have an opportunity to do, and that is effect a change in the General Plan and theprocesses ofthe General Plan. And so I think it behooves us to, in some ways I agree with Mr. Torigoe that, you know, a challenge down the road is not a real big deal but, you know, it may not really come up so it€s nota real big deal in that sense. But on the other hand, if it comes up, if we make this change and then the County adopts the changes and then uses the process -. I€m going to wait till the siren (monthly siren) stops. Because changing the General Plan is a big deal. And if we don€t do this right and the process to change it is done, ultimately if it€s found, you know, to be illegal, then any changes that we made on the process are not going to be, you know, are going to be the, can be challenged based upon the use of an improperly adopted procedure. So that is why I think it€s important enough an issue that we should just tell the Council start all over again, do it right, and, you know, and we won€t have any problems, or we need to renotice this because of the -. If the Council really wants 16.1 and 16.2 amended, then it should be done that way also, not send us something that says amend 16.2 and then now we start changing 16.1. You know, why don€t we go amend the charter at the same time. You know,there€snoclearauthorityintheresolutiontoustodo16.1.Idon€twanttopresumethat or imply somehow that we have the authority to do that. So for those two reasons I speak against the motion. GRAHAM:Any other Commissioners? SIRACUSA:Yes. GRAHAM:Yes, Commissioner Siracusa. SIRACUSA:We just got these revised recommendations today and the public has not had a chance to review them or come in and testify on them. And I tend to agree with Commissioner Iwashita on this that we ought to act on the side of, just be pro-active about it and act on the side of safety and cross all our t€s‚ and dot all our‚i€s‚ and do it right, and put this on the agenda again with proper notice. And then there will never be any question as to whether we moved in an appropriate manner. So I will be voting against that motion. GRAHAM:Can I ask two clarifications. I didn€t realize we got new material today. Did we get new material today on this, yes? YUEN:There€s a light redraft of sections that are in red, they€re changed, some of the wording has changed from the draft that you saw before, and the changes are in red. GRAHAM:Thank you. And, also, my understanding of the notice is that the notice that we have on our agenda, which is I think what the public sees, says Initiator: County Council review and comment on the draft ordinance regarding the General Plan Amendment Procedure;‚ and it doesn€t specify 16.1 or 16.2. So even though I see the point it€s regards to the resolution, I think the public notice is okay on that. Any other comments? Commissioner Watanabe? WATANABE:Well, I would point out that we€re only making a recommendation. There€s going to be further public notice and opportunity to testify and also review whatever is subsequently forwarded to the County Council when they have their meeting on this. There may be further revisions to this. We shouldn€t be so presumptuous to assume that this is the final 11EXHIBIT B wording just because we may or may not recommend these proposed changes. So I think there€s sufficient public notice. GRAHAM:Commissioner Siracusa? SIRACUSA:A public notice doesn€t only mean letting the public know in the newspaper announcement that a certain general issue is being taken up. It also includes having the material available in print for the public to review the details of it and lettingthe public know where that material is available for them to review. And the public did not have that opportunity since this only came in front of us this morning. GRAHAM:Thank you. SIRACUSA:So my concerns about process and pubic notice stand. GRAHAM:Commissioner Iwashita. IWASHITA:To emphasize that point, you know, 16.2 gives us the 60 days for the publichearings;andCommissionerSiracusaiscorrectinpointingoutthat,youknow,thenotice is going to be in this general form, anyone of interest into, you know, all that€s done, all that is doing is giving notice. And what people got if they inquired into this matter at that point is basically not what we€re looking at today. So that is a valid point. GRAHAM:Hold on a second. Okay, do we have any further comments from the Commissioners on this motion? Okay, maybe Jeff can take the vote on this motion. This is a motion to procedurally go forward. DARROW:Thank you, Mr. Chairman. Just to reiterate, this motion is that the Planning Commission accepts that they are procedurally clear to move forward with the County Council initiated re: The General Plan Amendment Procedure. Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Iwashita? IWASHITA:No. DARROW:Commissioner Rho? RHO:No. DARROW:Commissioner Salavea? SALAVEA:Aye. 12EXHIBIT B DARROW:Commissioner Siracusa? SIRACUSA:No. DARROW:And Mr. Chairman? GRAHAM:Aye. DARROW:The motion does not pass four to three. WATANABE:Then I would move -. GRAHAM:Excuse me a second. Go ahead, Commissioner Watanabe. WATANABE:I€ll make another motion and let€s -. I€ll move to continue this matter to thenextPlanningCommissionmeeting. SIRACUSA:Second. GRAHAM:Okay,movedandseconded.Mr.Torigoe,doyouhaveanycommentson how we€re proceeding here? TORIGOE:I just wondered what would be, what is it that you€re wanting to accomplish by continuing? I guess to try and get a fuller board for one thing? WATANABE:I€m hoping, yeah, but, I mean -. Well, if we€re not clear procedurally there is no way we can pass this other thing. It€s going to come the same thing, four-three, right? TORIGOE:Right. WATANABE:So the only other thing we can do is say, no, we don€t like this. But four people actually, I assume like it, we just don€t have five. So what else can we do? We can sit here all day and we are still going to come out four-three, no matter what happens. TORIGOE:Right. I was also going to ask is there anything, I guess, in discussion -? WATANABE:Or if procedurally, I€m sorry, but, or if procedurally because we€d like to present it on both sides, maybe we should have the Director discuss it now just for the record, because the next Planning Commission meeting will be on the west side and at least we won€t then at the west side meeting be discussing something that was never discussed on the east side because we couldn€t get past procedures. I don€t know -. GRAHAM:One thing I€m sensing in Mr. Torigoe€s comment is that rather than just kind of come up again with maybe a bigger Commission, is there something that could be done in the meantime that would remedy the concerns of the Commissioners who didn€t vote for it; and we haven€t heard from Commissioner Rho and I know he didn€t support the motion. So do 13EXHIBIT B you have something in particular that could transpire between now and the next meeting that would change? RHO:Yes. Actually I was going to ask for a workshop for myself. But, you know, just to satisfy me just by taking another minute or two, on the last stapled document that we just got today on page 5 it refers to Planning Director, in, I guess, it€s called paragraph 2. So I guess my question is whether or not what we€re attempting to approve and submit to the County Council is an interim amendment or interim amendments to the General Plan? Is that we were thinking of doing? Is this what this whole thing is about? YUEN:Yes. Yes, it is. RHO:So then if you go to 2-B it says the Planning Director shall conduct a workshop on the proposed amendment prior to submitting it to the Planning Commission. So I guessmyquestioniswhetherornotthatwasdone. YUEN:No.AndthisisagainamatterIdiscussedwithCorporationCounsel.The Planning Director€s version is a proposed redraft of the County Council-initiated amendment. And so the County Council-initiated amendment does not require a workshop. RHO:Okay. But, you know, if, and I€m getting confused with all the discussion. But if in fact Commissioner Iwashita€s objections are half-way valid then it does impact a and b. It allows you to initiate and b basically requires that a workshop be held. And there€s no workshop for the first section, which the County Council never, according to what Commissioner Iwashita says, never mentions in their resolution or their whatever. So half of it, the second part, number 2, 16.2, I guess, is okay; but 16.1 requires, in my reading anyway, requires a workshop. GRAHAM:Mr. Rho, my understanding is we have an existing law that we€re operating under and we€re considering a future amendment to that law. So the content of the future amendment doesn€t direct what we do now. We now operate under existing law. RHO:The future amendment is not underlined or boldfaced, so I€m assuming that we have to follow Planning Director, a, b, c and then in d it starts to change. YUEN:No. May I? You know, Commissioner Rho is asking a very valid question that we actually discussed with Corporation Counsel in-house, you know, and that is, just to walk this thing through -. Okay, the County Council sent a proposed change on how to do Council-initiated General Plan Amendments, coupled with a resolution that says look at it more broadly. Looking at it more broadly, there were some other changes that if you€re going to make some changes to part of the section, there€s some other things that should be changed. So I redid a proposed redraft of their amendment that affected the other sections. Then the question comes up is this, can this just be sent back to the Council as a redraft, a proposed redraft of their Council-initiated amendment which does not require a workshop; and then the Council could if they wanted substitute this as Draft II at Council and pass it? All right? Or does this have to be a Planning Director initiated General Plan Amendment which needs a workshop before it comes to the Planning Commission? And this is a question that I submitted to the Corporation Counsel; and the response was that it could be considered as a redraft of the County Council-initiated 14EXHIBIT B amendment and would not have to go the route of having a workshop first. And I follow their advice. I mean, they€re giving me legal advice on the procedure here, I followed their advice. If they said no, got to do it the other way, have a workshop, I would do it that way. But that€s the story. And, you know, you€re asking, as I say, a very valid question that was part of the analysis in going through with this decision to follow the present procedure. GRAHAM:Thank you. Yes, Commissioner Siracusa. th SIRACUSA:But also to add the, the first one we got on October 27, the background/recommendation; and in that 16.2 Planning Director b which they crossed off, which means that it was there originally, says the Planning Director shall conduct a workshop. So that was in there originally, and then they crossed it off, and then you came and put it back in for your draft, Director. YUEN:No, that€s not correct. SIRACUSA:Then why is, what is on the top of there -? YUEN:You€re looking at, let me look and see and make sure what you€re looking at -. Yes, the Exhibit A that you€re looking at, just so we€re really clear on this, is the Council€s bill. Okay, that€s attached to the resolution. And it covers, and the current law for Planning Director initiated amendments does require a workshop. Okay? And then, finally, the Council€s bill would change the shall conduct a workshop‚ to may conduct a workshop.‚ GRAHAM:I think we€re at a real time sensitive point here, too. We have a contested case hearing scheduled next after this item and at least one or maybe two of our Commissioners aregoingtohavetoleaveataround1:15.Wewouldstillhaveaquorumatthatpointsowe could go with five. My inclination is to go and do a break now and do a lunch and realize that when we come back we may have only five, because I don€t think we€re going to be able to rush through this and Item No. 6 before 1:15 anyway, and I don€t want to rush through a contested case hearing. So, anyway, I€m just speaking out here, just asking the Commission€s preference as to what do we do, do we break for lunch or not? GALDONES:Mr. Chair? GRAHAM:Yes, Mr. Galdones. GALDONES:Thank you, Mr. Chair. Well, unless there is a Commissioner who had voted against the motion have another motion for us to consider addressing the concerns that they have raised, I would say that we break for lunch. But if someone who had voted against the motion has a motion for us to consider and we can get consensus or the majority voting on it, then let€s put it on the table so we have something to chew on and -. We need get off the dime on this issue. We€re just hearing a lot of concerns. A motion was tossed out, they don€t like that. What do they want so that we can move on? We need to move on on the subject matter. GRAHAM:Mr. Torigoe, did you have something? 15EXHIBIT B TORIGOE:No, I just wanted to comment that, you know, I had given advice to the Planning Director and to the Commission; and I want to tell you that you follow your consciences and do what you think is right. And if you can put your heads together and come up with some method of attacking this, even if it€s say that, all right, we€re going to go forward but we€re not going to touch anything but 16.2, you know, if there€s some way that you can come up with a way of going forward, I am in no way going to be offended, you know, if you ignore my advice, or short-cut it, or whatever. Okay, thank you. GRAHAM:So, anyway, -. GALDONES:So, Mr. Chairman, as a follow-up, if there€s no other motion that€s going to be introduced, my recommendation to the Chair is that we recess for lunch. GRAHAM:Okay,Mr.RhoorMs.Siracusa,doyouhaveanymotionyouchooseto introduce that could put an end to this right now? RHO:No. SIRACUSA:No. GRAHAM:No. Is it okay we break for lunch? RHO:Okay. GRAHAM:Okay, so we will break for lunch now. And what time would we be back, probably about 1:20 or 1:15, something like that? WATANABE:One thirty. GRAHAM:Okay, we€ll break for lunch and be back at 1:30. RECESSEDThe Chair recessed the meeting at 12:25 p.m. RECONVENEDThe meeting reconvened at 1:30 p.m. GRAHAM:I€ll call the Planning Commission meeting back to order. I believe where we left off was that we were discussing a motion to continue our deliberations on the General Plan Amendment till the next hearing, but we hadn€t really finished with that. Commissioner Watanabe? WATANABE:Yeah. Before we ask for the vote on that motion, I had a question for Commissioner Rho. And I know you had mentioned some concern about a workshop and I€m wondering if having that workshop, is that your only real objection to the proposed amendments oristheremore?Wouldhavingthatworkshophelpyouindecidingfororagainst? RHO:Workshopmeaningworkshopformepersonallyor-? 16EXHIBIT B WATANABE:No, no, for -. I don€t take it the wording means for any one Commissioner. I mean -. RHO:Well, actually, I mentioned that word twice, one for the general public which I think it€s cleared up for me now. The other one actually referred to myself. I was referring to myself. I mean, with all the discussion, for me anyway, I find it very difficult to follow. I€m not even sure what we€re actually talking about at various points. So -. WATANABE:But I wasn€t attempting to single you out. RHO:Oh, no, I mean that€s fine. It€s okay. WATANABE:I was thinking if we were going to schedule a workshop for the Commission it would be for all the Commissioners, you know, who are interested in attending, if thatwouldhelpyou. RHO:Well,whatIwasplanningtodowasjustgobackandreadthewholething again and see whether or not I can actually make sense of, cause I think what we€re doing is we€re talking two different things sometimes at the same time. You know what I mean? The procedure part and then the actual document and what we want changed or not changed or what€s really be recommended; and so, -. WATANABE:Oh, okay. RHO:And then we have it in black and then we have it in red and -. WATANABE:Okay. Well, I don€t know ƒ maybe the motion was made by myself to continue and I believe Mr. Galdones had seconded the motion. GRAHAM:Right. So summing up then maybe the continuance works well for you, Commissioner Rho? RHO:Yes. GRAHAM:Good, okay. So perhaps that€s the direction we should just go right now with the continuance till the next hearing. WATANABE:You would have to call for the question though. GRAHAM:Yeah. If there€s no further discussion on that, then we€ll just have the Planning Department Staff take a vote on the motion for continuance of this agenda item until our next hearing. Is that okay with everyone? GALDONES:Mr. Chairman? GRAHAM:Yes, Commissioner Galdones. 17EXHIBIT B GALDONES:I think addressing Mr. Rho€s concern also, I think it would be with the intention that there would be possibly a presentation by the Director in addressing the proposed changes so the Commissioners can better understand where this is heading. GRAHAM:Okay. I think we€ll plan to do that next time. Okay. So I guess we€re ready. Jeff, you€d like to take the roll call on the motion to continue this? DARROW:Just a matter of clarification, in the motion Commissioner Watanabe moved to continue and Commissioner Siracusa seconded it. So at this point she is no longer here. Do we need someone else to second the motion at this time? No? TORIGOE:No. DARROW:Okay. Commissioner Watanabe? WATANABE:Aye. DARROW:Commissioner Galdones? GALDONES:Aye. DARROW:Commissioner Iwashita? IWASHITA:No. DARROW:Commissioner Rho? RHO:Yes. DARROW:Commissioner Salavea? SALAVEA:Aye. DARROW:And Mr. Chairman? GRAHAM:Aye. DARROW:The motion passes five to one to continue. GRAHAM:Thank you. The discussion ended at 1:42 p.m. Respectfully submitted, Sharon M. Nomura, Secretary 18EXHIBIT B