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HomeMy WebLinkAbout2011-11-17 Leeward Exh B - PC Rule No. 9 LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT NOVEMBER 17, 2011 PLANNING DIRECTOR INITIATED AMENDMENTS A regularly advertised hearing on the TO PLANNING COMMISSION RULE NO. 9 REGARDING THE SPECIAL MANAGEMENT AREA was called to order at 10:53 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokalole Highway, Kailua-Kona, Hawai‘i, with Chair Geraldine Giffin presiding. COMMISSIONERS PRESENT: Geraldine Giffin, Brandi Beaudet, Lani Bowman, Thomas Hickcox, Wayne Iokepa and Thomas Whittemore ABSENT AND EXCUSED: Richard Nelson ALSO PRESENT: Ivan Torigoe (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Jeff Darrow (Staff Planner), Maija Cottle (Staff Planner) and Noriko Sauer (Commission Secretary) And one person from the public in attendance. INITIATOR - PLANNING DIRECTOR Amendments to Planning Commission Rule No. 9 regarding the Special Management Area (SMA) to conform with Act 153, which amended Chapter 205A, Hawai‘i Revised Statutes regarding Special Management Area. The proposed amendments to Rule No. 9 seek to exempt the State Division of Boating and Ocean from any SMA permit, amend the definition of single family dwelling as an exempt class of action, and increase the valuation of improvements that could be considered exempt from the SMA requirements. GIFFIN: Commissioners, I’d like to draw your attention to Agenda Item No. 6. And this has been initiated by the Planning Director for amendments to our Planning Commission Rule No. 9 regarding Special Management Are, SMA, to conform with Act 153, which amended Chapter 205A, the Hawai‘i Revised Statutes regarding Special Management Areas. And for further expansion, Daryn? ARAI: Thank you, Madam Chairwoman. In June of this year, the Legislature enacted Act 153, which amended the State’s Coastal Zone Management Law, Chapter 205A, Hawai‘i Revised Statutes. The purpose of the Act was to expedite and facilitate work on projects that may have been stalled due to delays relating to SMA permitting requirements. And I guess I should clarify that it was not due to delays by the Planning Commission. Now, the Bill, there are basically four substantive portions of the Bill, or changes to the Bill, as it affected Chapter 205A. One of them is it provided a definition to the size of a single-family dwelling that could be considered exempt or applicable to the issuance of an SMA Minor Permit versus an SMA Major Permit, which would then come before you as the Planning Commission, and that amount is 7,500-square foot floor area. Previously there was no limit; as long as it’s a single- family dwelling, it could be considered for a Minor Permit or could be considered exempt. So 1 EXHIBIT B that’s one change. The second change was including final subdivision approval as one of those items that are not defined as the development. Now, this particular section is basically meaningless because final subdivision approval is an administrative act; it is not development per se, you know. So therefore, we are not suggesting any specific amendment to your rule to include final subdivision approval as one of those uses that require an SMA Assessment. The third item is the valuation of development. Previously, there was a limit of $125,000 by which something could be considered for an SMA Minor Permit. That amount was increased by Act 153 to $500,000. And finally, Act 153 amended Chapter 171-6 of the Revised Statutes regarding the State Board of Land and Natural Resources, and basically it exempted from the State SMA Law all facilities, plans, design, construction and operation of facilities under the jurisdiction of the Department of Boating and Ocean Recreation. So based on these amendments to State Law, we went through Rule No. 9 of your Rules, and as indicated on the yellow paper that was attached to your report – and again, sorry for the last minute revisions that came to you – but we tried to conform amendments to the State Law to your Rules. And as you can see by the ramsayered amendments in this draft rule amendment, one area which we tried to expand upon was the definition of floor area, because the State amendment just says 7,500-square foot single-family residence; how you define it was not made clear. So this is our attempt to try to provide some clarity to staff. We looked at the International Building Code and we also looked at the Zoning Code definition for single-family dwelling, and we sort of did a highbred, and we are hoping that this provides at least some definition and some clarity to the definition of the floor area for a single-family residence. The changes between the original draft rule that we sent to you earlier and the one that you just received like yesterday is that, thank you to Deputy Corporation Counsel, Ivan Torigoe, that there are other sections within your Rules that made reference to $125,000. I should have caught it earlier and I didn’t, and I apologize. So I simply went back and every part of the Rules that made reference to $125,000, I made it to $500,000 to be consistent with the requirements of State Law. So with that, I stand ready to answer any questions that you may have. GIFFIN: Any questions of Daryn, Commissioners? HICKCOX: I have one question, just kind of off the wall again but -. GIFFIN: Sure. HICKCOX: What are the lands or facilities under the jurisdiction of the Division of Boating and Ocean Recreation? GIFFIN: Daryn? Director? LEITHEAD TODD: Small boat harbors, basically. And what this does is previously small boat harbors were under DOT and were granted an exemption from the application. Then when they switched it from DOT to DLNR, they forgot to give DLNR the same exemption that DOT used to have. So all this is is giving the small boat harbors the same exemption they previously had when they were with the different State department. HICKCOX: I got it. Thank you very much. GIFFIN: Any other questions of staff or the Director? 2 EXHIBIT B BOWMAN: I just have a -. GIFFIN: Lani. BOWMAN: Maybe because I’m not a builder. Seven thousand five hundred, that’s a big, isn’t that big? ARAI: It’s big. BOWMAN: Okay, so but I think what saves you is that it has to be under $500,000, and it’s kind of hard to build that big of a house, I believe, for $500,000. LEITHEAD TODD: No, no, no. I’m sorry. GIFFIN: Director. LEITHEAD TODD: For the house, it’s just less than 7,500 square feet, it’s exempt. Previously, any single-family residence, regardless of size, regardless of cost, was exempt. This just adds a size restriction. The $500,000 is separate and apart from this. And so you can have a 7,500-square foot house that costs you $9,000,000 and it’s still exempt. It’s purely the size of the house that becomes the trigger, and not the value of the house. Because otherwise, if you are familiar with construction on the Kona side, you could have a house that’s 2,000 square feet and worth more than $500,000. So it’s purely the size of the house. The $500,000 is for anything else that you are doing that isn’t covered by an exemption. So a cell tower in old days – because I was in one of the cases that went up to the Supreme Court, it was I think the Curtis case, where the issue there was what was the value of the construction. It would also go to the value of, you know, reconstruction of existing buildings and stuff, if there isn’t a specific exemption. So you have to read the exemption separate from the difference between the SMA Minor and the SMA Major. And the $500,000 is that, you know, the $125,000 was there for many, many years, and so they are finally saying, you know, what you could build for $125,000 20 years ago and what you can build for $125,000 now is vastly different. So they are tying to basically kind of bring the numbers more in line with the change in the cost of construction. BOWMAN: But -. LEITHEAD TODD: However, I should note that if you come in to the Department with something that is less than 7,500 square feet in the house, less than $500,000 in value, and our staff looks at it and believes that it would have or could have a significant impact on the shoreline area, we can still require, and recently did in a case of somebody coming in for an area where we felt that there was the potential to have a significant impact. We did not look at the value of what they were proposing, we didn’t look at the fact that it was in fact a single-family home; we looked at the impact on the shoreline, and sent a letter out to the applicant, saying that because of the location of the property and the location of what they were looking at doing, we felt that it would have or could have a significant impact, and therefore, before they could proceed further, we were going to require an SMA Major. BOWMAN: Thank you -. GIFFIN: Lani. 3 EXHIBIT B BOWMAN: Thank you for your clarification, because that was my concern exactly that we have that stipulation, which is it has no cumulative impact or substantial adverse environmental or ecological effect. Because, you know, our shoreline is getting smaller and smaller. So I appreciate that clarification. LEITHEAD TODD: Well, specifically what it was is somebody who didn’t have very much buildable area, so they were proposing to have a zero setback from the shoreline, which basically would have been a wall right on the shoreline. And we just felt that, given the location of the property, that the impact of any wave action in the area could have unintended consequences on the surrounding property in the area. So we said SMA Major, and they ended up withdrawing their application. BOWMAN: Okay, thank you for the clarification. GIFFIN: Commissioners, any other questions of staff and/or the Director? I should also mention that there is no one from the public here to provide public testimony. Daryn, did you want to say something? ARAI: Sure. Just one thing is that since this is an amendment to your Rules, this matter is also scheduled before the Windward Planning Commission. GIFFIN: That’s right, because we are one. ARAI: Right. GIFFIN: Commissioners, I’d like to direct you to Page 3 of the Background report, which is a recommendation; the Planning Director recommends that the Planning Commission both, as Daryn said, Windward and Leeward, adopt the proposed amendments. Do I hear a motion for us? IOKEPA: Madam Chair, I propose a motion that recommends that the Planning Commission adopt the proposed amendments. GIFFIN: Do I hear a second? HICKCOX: Second. GIFFIN: It’s been moved by Commissioner Iokepa and seconded by Commissioner Hickcox that we adopt, no, send a positive recommendation to adopt the proposed amendments as proposed by the Planning Director. LEITHEAD TODD: Madam Chair, the motion should be to approve, because we are not forwarding this to the County Council, but it’s that strange situation where both Planning Commissions will have to both move to approve and have to approve the same language. Otherwise, we are going to have to go back and forth between the Commissions. GIFFIN: Thank you. May I please rephrase for the maker of the motion and the seconder that we approve the proposed amendments as proposed by the Planning Director? Does that meet with your approval, the maker of the motion and the seconder? 4 EXHIBIT B IOKEPA: Yes, mahalo. HICKCOX: Aye. GIFFIN: Thank you. Any comments or questions? Hearing none, Daryn? ARAI: Commissioner Iokepa? IOKEPA: Aye. ARAI: Commissioner Hickcox? HICKCOX: Aye. ARAI: Commissioner Beaudet? BEAUDET: Aye. ARAI: Commissioner Bowman? BOWMAN: Aye. ARAI: Commissioner Whittemore: WHITTEMORE: Aye. ARAI: Madam Chairwoman? GIFFIN: Aye. ARAI: Madam Chairwoman, the motion carries with six aye votes. GIFFIN: Great. Thank you, Commissioners. The discussion ended at 11:07 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 5 EXHIBIT B