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HomeMy WebLinkAbout2012-12-13 Leeward Exh B - Bill No. 291 LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 13, 2012 COUNTY COUNCIL INITIATED BILL NO. 291 A regularly advertised hearing on the REGARDING AN AMENDMENT TO ZONING CODE RELATING TO PLANNED UNIT DEVELOPMENT (P.U.D.) was called to order at 10:06 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chair Geraldine Giffin presiding. COMMISSIONERS PRESENT: Geraldine Giffin, Brandi Beaudet, Lani Bowman, Thomas Hickcox, Richard Nelson, III and Thomas Whittemore ABSENT AND EXCUSED: Wayne Iokepa ALSO PRESENT: Ivan Torigoe (Deputy Corporation Counsel), BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Planner), Jeff Darrow (Planner), Maija Cottle (Planner) and Noriko Sauer (Commission Secretary) And approximately 25 people from the public in attendance. INITIATOR: COUNTY COUNCIL (Bill No. 291) Bill No. 291 regarding a proposed amendment to Chapter 25, Article 6, Division 1 of the Hawai‘i County Code 1983 (2005 Edition, as amended), relating to Planned Unit Development (P.U.D.). The purpose of Bill No. 291 is to clarify procedural guidelines, define the requirements of a P.U.D. permit, and to add the Planning Commission(s) and the County Council to the review and approval process for a P.U.D permit. Initiates amendments to Chapter 25 (Zoning Code), Article 6, Division 1, relating to P.U.D: Amends Section 25-6-1 relating to Purpose. Deletes Section 25-6-2 relating to Minimum land area required. Amends Section 25-6-3 relating to application for P.U.D. permit. Amends 25-6-4 relating to Notice of action on a P.U.D. application. Deletes Section 25-6-5 relating to Procedure for processing P.U.D. application when use not permitted in district. Amends Section 25-6-6 relating to Actions by director on P.U.D. permit applications and replaces it with Procedure for processing P.U.D. application, adds Section 25-6-7 relating to Conditions imposed on P.U.D., and Section 25-6-8 relating to Review and approval of final site plans. Deletes Section 25-6-10 relating to Criteria for granting a P.U.D. permit. Replaces Section 25-6-11 relating to Height exceptions authorized with Construction in conformity with approved final site plans, and Section 25-6-12 relating to Approval of variances, use permits and plan approvals issued under P.U.D. permit with Plan approval issued by approval of final site plans. Amends Section 25-6-13 relating to Effect of P.U.D. permit on other zoning provisions. Amends Section 25-6-14 relating to Time extension and amendments. Amends Section 25-6-15 relating Appeals to Appeal of director's actions on P.U.D. final site plans. GIFFIN: Commissioners, in your folder you should have gotten the hardcopy of Agenda Item No. 2. The initiator is the County Council, Bill No. 291. So if you, like me, Commissioners, need the time to review Agenda Item No. 2 -. And if there is no need, we can move right along. Initially, when I was reviewing this agenda item, I was working off of the agenda itself, and it seemed kind 1 EXHIBIT B of convoluted. But if with the new hard material that you’ve got in your folder, you are clear and you don’t need to, need time to review, that’s great. Maija? COTTLE: Thank you, Madam Chair. Good morning, everyone. COMMISSIONERS: Good morning. COTTLE: The next agenda item is a County Council initiated amendment to the Zoning Code relating to Planned Unit Development. And hold on just a second, I lost my clicker. All right. So the County Council initiated Bill 291, which proposes several amendments to the Zoning Code relating to Planned Unit Development. The purpose of Bill 291 is to add the Planning Commissions and the County Council to the review and approval process for a P.U.D. permit, as well as clarify procedural guidelines and define the requirements of the P.U.D. permit. Currently, Planned Unit Development permits are issued administratively by the Planning Director. And this is a diagram that shows the current and proposed process for P.U.D. approval. The current process involves an applicant submitting an application to the Department, and notice of the application is put in a newspaper, and a sign is posted on the property by the applicant – you’ve probably seen those signs around the island – and then the applicant also mails notice of the application to surrounding property owners and lessees; if the property is on Urban land, surrounding neighbors are notified within 300 feet, and if the property is on Agricultural land, then surrounding property owners within 500 feet are notified. And then after a period of time, obviously, the public and surrounding neighbors can write letters in to the Planning Director, and she considers those letters, any concerns that the community has, and then makes a decision whether to approve or deny the P.U.D. permit, as well as what conditions to include. Bill 291 on the other hand proposes to include the Planning Commissions and the County Council in the review and approval process; so again, the same opportunity for community and public involvement would apply here, and then instead of the Director making a decision, the Director would make a recommendation to the Planning Commissions, and the Planning Commissions would hold a public hearing and make a recommendation on the P.U.D. permit to the County Council for a final decision. So the process proposed in Bill 291 is similar to the rezoning process that currently exists. LEITHEAD TODD: Maija, I think we -. COTTLE: Yes. LEITHEAD TODD: Can you go back? COTTLE: Sure. LEITHEAD TODD: I want to make sure that we avoid any confusion here. The process proposed in Bill 291 still does include notice of application being mailed to the surrounding property owners and lessees; it is not eliminated in Bill 291. Just from the diagram, I thought it kind of gave the impression, so I want to clarify that it is not deleted in Bill 291. COTTLE: Thank you. So what is a P.U.D. permit? A P.U.D. permit essentially allows a comprehensive set of variances from the Zoning and Subdivision Codes that are related to building site standards, such as lot width and lot size, building height, yards and open space, and road standards. 2 EXHIBIT B The Director has a few concerns with Bill 291. The primary concern that she has is changing the approval process from an administrative decision made by the Director to the County Council may be in conflict with the County Charter, because, as you can see, the County Charter states that the Planning Director shall render decisions on proposed variances. Since a P.U.D. is a set of variances, it may be that the authority to approve a P.U.D. cannot be shifted to the Council without first amending the County Charter. So the Planning Department obviously reviewed Bill 291, and tried to understand the intent of the bill, which was to provide greater community involvement and design P.U.D.’s that are in context with a surrounding community. At the same time with the concerns that the Director had, we also, the Director felt it would be prudent to initiate a different bill that would implement the intent of Bill 291 but also address some of the concerns. So, before I go too far into this, we should have on the agenda included the County Council initiated bill, and then also included as an agenda item the Planning Director’s initiated bill that you have as Exhibit 3. We did not do that; so we didn’t agendize this correctly. So as far as our th recommendation, we’ll just be focusing on Bill 291 today, and then at your January 24 meeting we will include the Director’s proposed bill on that agenda and we can discuss her initiated bill. And we apologize for the oversight. LEITHEAD TODD: I should also mention just informationally there are two other bills that are currently being drafted by staff, which I’m not sure if they will make, probably more like February. Those would be bills that are taking those provisions of the Kona CDP that were in attempt to amend Chapters 23 and 25, and making proposed ordinances to amend the County Code to conform to the intent of the Kona CDP. So those will also be coming along. And some of that will also address the P.U.D. application process. GIFFIN: Good. COTTLE: Okay, so I’m just generally going to go over what the Director’s bill is proposing, and then we can take up action on that at your next meeting. The alternative bill would propose that applicants conduct a community meeting prior to submitting a P.U.D. application, and that P.U.D. developments be consistent with the intent of the recently adopted Community Development Plans. Holding a community meeting prior to submittal of a P.U.D. application, we feel, is beneficial to the applicant, as well as the community, because it allows areas of community concern to be identified early on in the process so that the applicant can modify their development plans as needed before submitting the application. And this just generally describes the P.U.D. approval process under the Director’s proposed bill. The applicant would conduct a community meeting to solicit concerns from the community, and again the same notification requirements that currently exist, notification of the application in a newspaper, the sign posted on the property, and notification to surrounding property owners, and then the Planning Director would consider all those comments and concerns and make a decision. So, as I mentioned before, at this time the Director would request that the Commission send an unfavorable recommendation to Bill 291 in its current form to the County Council, and then we will be initiating an alternative bill at your next meeting. Are there any questions? GIFFIN: Commissioners, any questions of Maija? Lani. 3 EXHIBIT B BOWMAN: I have a question, and I don’t know if I can ask the question on the Planning Director’s alternative bill. May I? COTTLE: Let’s check with Ivan. TORIGOE: Really I would discourage any detail discussion regarding the Planning Director’s bill because it’s not agendized at this point. BOWMAN: Right. Okay, I’ll wait till next time. Thank you. GIFFIN: Any other questions of Maija, Commissioners? BOWMAN: Oh -. GIFFIN: Lani. BOWMAN: I do. Just out of curiosity, how many P.U.D. permits, about, are reviewed during a year? COTTLE: They are fairly rare; I would say two to three a year. LEITHEAD TODD: Well, I think this past year we probably, either that were, they might have originated in previous years, but I think we had about four or five that we’ve been, either approved or are in the pipe there – two that are currently in the office, one is Waiki‘i and the other is Puakō. And at the request of the Action Committees, we changed notification processes in our office so that when we send letters out to agencies for comment, like Department of Health or DPW, at the same time that letter goes out to the Action Committees with a brief description of what the application is, and then they can determine if they want to have it agendized and a presentation. So most recently we had a presentation on Puakō 1010 to the South Kohala Action Committee, and we have to do a presentation, which is scheduled, on the Waiki‘i P.U.D. Unfortunately, for the South Kohala presentation, we didn’t have a quorum from the Action Committee; but the Sunshine Law allows you to go ahead with the presentation for the members of the public that were there. And at the request of the Department, the applicant also met with the Puakō Community Association to address their concerns. And so there have been certain things that have been tweaked in the Puakō because their basic concerns there had to do with sight distance and setback from the highway and also whether there would be a future road connection consistent with the CDP, which the applicant is agreeing to dedicate to the County once somebody decides where the alignment is. So what we’ve done is we’ve tweaked the process to try and involve the Action Committees a little bit more. The basic problem was that when we mailed notices out to agencies, by the time we were getting down to doing our, you know, semi-monthly notice to the Action Committees, the time to comment had really, you know, kind of evaporated; so we are doing it upfront. The basic concern I had is that previously there had been a bill that the Council had wanted to take all subdivision approvals and have those go to the County Council rather than through the Department; they would have come to the Planning Commission, they would have then gone to the County Council. And the problem was that the County Charter was amended, I guess, back in the 1960’s where it specifically set out that the subdivision approvals were within the Department. And there is also language that says variances are within the Department. And at the time the 4 EXHIBIT B subdivision bill was being discussed, corporation counsel opined that it could not go to the Council as part of their function unless the Charter was amended first because the Charter set up which were administrative matters and which were matters that went to the County Council. So that was the basic concern I had with Bill 291, that you need to go, you know, it was my opinion and, you know, we’ve discussed with corporation counsel that represents the Department, and the concern was that in order to enact Bill 291 in its current form, you probably need to go and amend the County Charter because it specifically says that variances decisions are rendered by the Planning Director. And so, you know, if the Council wants to initiate an amendment to the Charter, then, you know, they could go do that, and then they could enact Bill 291. But I think, obviously, we are going to have, you know, some disagreements, and I’m sure that there are some people who will argue that maybe the Charter isn’t as exclusive as it appears to be, but we had this discussion before. And I did talk to a prior planning director and he said that they had specifically gone in and amended the Charter with the purpose of moving things, some things administratively, and it was in response to the fact that the concern is that to take all of those things to the Planning Commissions was just eating up a lot of time and was very difficult to administer that way. So the change was made in an earlier Charter, so we are probably going to have to go back, dig up the minutes of the Charter, and look at, you know, what the rationale was for those changes. And so, you know, as this bill goes up to the Council, we’ll have to go dig a little more in their records and see, you know, what was the intent of the language, what was stated, you know, what was the measure as proposed, to really determine if in fact that was the intent of the Charter amendments and whether it impacts Bill 291. So it’s going to require some more research. GIFFIN: Lani. BOWMAN: Thank you. I think, for the benefit of the public, and I’m sure you know, that the Action Committees, or the CDP Action Committees in each community, and the meetings like are held in Puakō and in Waiki‘i, which I guess brings me back to the long process of the CDP’s in the various communities and how, to me, as members of the public, these Action Committees have worked very, very hard, and are to me the, I don’t know, the frontline of community response. And I guess to get around my question was a lot of times I know people have told me, you know, community meetings are held but they are held in Kona for some project in Kohala. And I’m hoping, well, not hoping but I understand, through the process that you have now, that they are held in the communities, and I would hope, if 291 goes through, that these community meetings would be held in the specific communities where a P.U.D. is being planned. LEITHEAD TODD: Some of that is a function of which Action Committee it is. The Kona CDP Action Committee typically holds its meetings here in the West Hawai‘i Civic Center, and they have not routinely moved meetings around. South Kohala tends to move their meetings; they hold meetings in Kawaihae, we’ve held meetings down in Puakō, they hold meetings in Waikoloa, and then they hold meetings in Waimea. And they try to tweak their agendas so that when we are in Waikoloa, it’s Waikoloa issues; when we are in Puakō, it’s more Puakō issues; Kawaihae, it’s more Kawaihae. North Kohala has not moved around as much. And Puna has moved back and forth a little bit, we’ve, mainly between Pāhoa and Kea‘au Town – I don’t recall that we’ve gone elsewhere, I don’t think we’ve done Volcano – but it’s mainly been Kea‘au and Pāhoa. Some of that is also a function of having meeting facilities that can accommodate the public and that are ADA compliant. But, you know, we do make that attempt. And then sometimes on the Council when they have stuff. But the goal is to try and eventually move to a system where before an application comes to us, that it has to be held in the community. And I think there is some more flexibility with that because you can use different, you can use someone’s house for that, if it’s not a 5 EXHIBIT B County meeting. If it’s a County-held meeting, we’ve got ADA, we’ve got other requirements; if it’s a community meeting, their community facilities that aren’t necessarily ADA compliant but that people can go to. And the goal is to try and get stuff closer to people. BOWMAN: Are you saying – I’m sorry – that if it’s a CDP Action Committee meeting, it can be held -? LEITHEAD TODD: No, if it’s an Action Committee meeting, because it’s a government meeting, we have to have ADA compliance, we have to have an agenda, it has to be posted. And to the great dismay of many members of the Committees, you can only discuss what’s on the agenda. And I think that’s been the biggest problem for a lot of them is because between the time you posted an agenda and the meeting comes up, something has popped up and they want to discuss it, but you can’t amend the agenda without the public notice. So, you know, we are trying to give them notice earlier so that if they want it on an agenda, we can get it on the agenda. GIFFIN: Commissioners, any other questions of either Maija or the Planning Director? Thank you, Maija. There are three people who have signed up to give testimony on this agenda item, and -. Jeff, we only have two chairs and two mikes, could we have one more chair brought up so that the three people can go ahead and testify? Oh, okay, maybe we’ll do two and two; I didn’t realize that there was going to be another request. Thank you. At this point then, will Mac McInnis and Tom Madson please come forward. And Mr. Fiala, we’ll have you come up later with the second person, I mean, the fourth person who is requesting to testify. Mr. McInnis, okay, and Madson. Thank you very much. Will you please raise your right hands. Do you swear or affirm to tell the truth on this matter now before the Leeward Hawai‘i County Planning Commission? TESTIFIERS: I do. GIFFIN: Thank you. Starting with you, sir, would you please state your name. MCINNIS: My name is Mac McInnis. Aloha and good morning. GIFFIN: Good morning. Your microphone, please. LEITHEAD TODD: We are recording and we keep, you know, minutes and stuff, so for our secretary we need to have the mikes running. MCINNIS: Thank you. GIFFIN: Thank you. Please state your name, and you may begin your testimony. MCINNIS: My name is Mac McInnis. Aloha and good morning, Madam Chairwoman, ladies and gentlemen. My wife and I reside in Kona Orchard Subdivision. We are fortunate to be year-around residents of Kailua-Kona. I’m in favor of the proposed bill. It would give the transparency to their approval process of the final site plan, which the citizens are entitled to. It will also ensure any concerns are taken into consideration along with the prudent development on our lovely island. We have quite a few people here today, and instead of taking the committee’s time for everyone to testify, I would like for all those that are in favor of Bill 291 to please stand. (Approximately ten people in the audience stood up.) 6 EXHIBIT B GIFFIN: Thank you. MCINNIS: Mahalo. GIFFIN: Commissioners, any questions of Mr. McInnis? Seeing none, thank you very -. BOWMAN: I do. GIFFIN: I’m sorry. Lani. BOWMAN: I’m just curious. Do you represent the people who are standing, who stood? MCINNIS: Define “represent,” please. I’m not an attorney representing them -. BOWMAN: No, I understand, but they all are associated with you and approve your testimony? I’m just curious. Are you all live in the same subdivision? No? MCINNIS: We live in different subdivisions, and I’ve spoken individually to everyone who just stood. BOWMAN: You’ve spoken individually. MCINNIS: Yes, ma’am. BOWMAN: Okay. Thank you. GIFFIN: Any other questions? BEAUDET: I have a question. GIFFIN: Brandi. BEAUDET: You mentioned that Bill 291 would improve transparency. Could you just expand on the statement? MCINNIS: Well, right now a PDU (sic) goes before the Planning Director, and the Planning Director, he or she, has the final approval, and a very little input, if any, is taken into consideration by the public. GIFFIN: Any other questions? BEAUDET: Well, I just have further comment on that. GIFFIN: Brandi. BEAUDET: You know, the standard notification regulations with the current P.U.D. application is for notification of surrounding, the surrounding community. I don’t know what the radius of that is, if it’s 500 yards or 1,000 -. 7 EXHIBIT B LEITHEAD TODD: Feet. GIFFIN: Feet. BEAUDET: Feet. But I think, I would question that, doesn’t that provide the immediately impacted residents of the area due notice and the ability to comment on their support or non-support? I just don’t see where there is a lack of transparency and how Bill 291 will improve on that, given just basically providing another forum for the community to come forward. GIFFIN: Sir? MCINNIS: I was not speaking of the notices, per se, sir. We do get notices, if we lived in a certain radius. But then when the P.U.D. goes in for final approval, they, concerns of the citizens, their objections or speaking in favor of it, are not, they are subject to change with the direction of the Planning Director; that’s written into the zoning ordinance. The Planning Director herself has the leeway to change whatever. GIFFIN: Lani. BOWMAN: Maija, can you go back to the, the two different -. COTTLE: Flow chart? BOWMAN: Yeah, the flow charts. When -. We talked about community meetings, and you were talking about the two P.U.D.’s that are on the books now with Waiki‘i and Puakō. LEITHEAD TODD: Yes. BOWMAN: And I’m just wondering, and I’m sure you are familiar with the Action Committees and the Community Development Plans, you know, I thought I heard that there are community meetings being held for, when these come up. GIFFIN: Director? LEITHEAD TODD: We recently met with representatives of the Action Committees – this is within the past six months – and they asked for earlier notice of applications. It’s not just P.U.D.’s, it’s basically any type of application that requires notice to surrounding property owners, we are giving to them at the same time that we mail notice out to agencies, because typically we give agencies 30 days to comment. And so they get it at the same time, they can then put it on their agenda. And since we amended our process, the two P.U.D.’s that have come through have been Waiki‘i and Puakō. The other P.U.D.’s, previously, by the time they got notice of it, it would be too late to put on their agendas. So they’ve put it on their agendas. Actually, Waiki‘i, the first P.U.D. was withdrawn. We had six letters in opposition, two from surrounding property owners, and, you know, met with the applicant, and as a result of those they withdrew their application, the first application. The objection was that all the property owners, the smallest lot size was ten acres, and the P.U.D. was proposing some five-acre lots. So that one got withdrawn. They submitted a new P.U.D., which is the one that’s going to be at the next Action Committee, and that one, the smallest lots are ten acres. With Puakō they met with the Action Committee in a public forum where people 8 EXHIBIT B could come, but they also met separately with the Puakō Community Association because they were the most vocal and concerned, and so they are tweaking their plan in response to that. I think people’s concern basically is that you get more than one bite at the apple, if you go through a different process; if you go through a process that goes to both the Planning Commission, as well as the County Council, you’ve got a bite of the apple at the Planning Commission and at the County Council. If it goes through as an ordinance there, you’ve got a bite of the apple at the Planning Committee, you’ve got two readings at the County Council, so you basically have four opportunities for the public to participate, whereas the current process, there is no public hearing unless it’s held by the Action Committees, and the decision making is done within the Department as opposed to being done at a public meeting. And that’s the basic difference between the current process and what’s proposed in Bill 291. I don’t specifically have an objection to Bill 291; my biggest objection – you know, to the intent – my biggest concern is that I think the County Charter does not allow a bill that is a violation of the Charter and how the Charter has set up. And then if you want to do Bill 291, I believe you need to amend the Charter. I think the discussion will be had at the Council -. Can you go to the Charter slide? And this is a specific provision of the Charter that it says you render decisions on proposed variances. And a P.U.D. is basically a set of variances; so if you switch from the Planning Department to the County Council, you run a foul of that provision. But, you know, we are just basing it on the language in the Charter. I think we have to go back and do further research as to when that amendment was made and whether there was any discussion at the Charter Commission or when the people proposed that as to why that amendment was made, because it actually was amended to take variances away from the Planning Commissions and to take it and put it administratively was the understanding that I had in discussions with a prior planning director. So, you know, you need, the problems are that if there is something that your Charter sets up a certain process, you need to amend the Charter. And so that’s the biggest concern I have about Bill 291 is that it may require that. GIFFIN: Thank you. Any other questions of either Maija or the Planning Director? Mr. McInnis, thank you very much. Mr. Madson, would you like to please begin your public testimony. And could we have lights on, please. MADSON: Yes, my name is Tom Madson. I live at Hualālai Colony in Kona. My feelings are about the same as Mr. McInnis’s. The only thing I might add is if this could be passed contingent upon changing the rulings for the county plans, or whatever it is, and then if you feel this is not legal, will you have another hearing that would include changing plans? GIFFIN: Mr. Madson, my understanding is that our vote today will be on what Maija presented in her opening remarks whether to approve or disapprove this particular agenda item, and it’s a recommendation really to the County Council in the current form of Bill 291. If I understood the staff and the Planning Director correctly, and she can correct me if I’m wrong, then there will be subsequent bills that will be introduced and be placed before us in future meetings where again we will have public input. Director? LEITHEAD TODD: Yeah, the intent was that, as we looked at Bill 291, and you run up against what the organization of the Charter is, was how can we currently without, because in order to amend the Charter that’s two years from now, is there a way to currently amend the County Code to provide the public hearing to provide greater input without running a foul or having to go and change the Charter two years from now. So the staff has come up with the bill, which would then come to the Planning Commission, would then go to the County Council, and the County Council 9 EXHIBIT B can add further amendments to it, including requiring perhaps that the Planning Director hold a public hearing on a P.U.D. after its submittal and held the meeting in the community. And that, you can do within, the way I see, the current law, and it’s not running a foul of the Charter; you can provide for that. Otherwise, if you go just the route of Bill 291, you really need to wait two years because you’ve got to go amend the Charter in order to, at least, you know, this is my read of the Charter. And so we were looking for a way that you could amend the County Code to provide the public hearings and public meetings and do that now legally within the confines of the Charter, as opposed to just saying Bill 291 is not legally permissible. So we are coming up with another bill that we think will address most of the community concerns about having a process to provide input and which can be amended to add additional hearings to it; but it has, we are trying to do one that is consistent with the Charter provisions, so you don’t have to wait two years to amend it. MCINNIS: I have a question, if I may -. GIFFIN: Hang on just one minute. Commissioners, any other questions or comments? Mr. Madson, are you through with your testimony? MADSON: Yes, I am. Thank you. GIFFIN: All right. Then let’s go back to Mr. McInnis. MCINNIS: Are those recommendations available to the public at this time? LEITHEAD TODD: We can provide a draft of the bill that we are working on; we may tweak it some more but, yeah, we can email you, if you provide your email to our staff, we can email a copy of the proposed bill that we are working on that will be on next month’s agenda. And you can provide comments and recommendations and testimony on whether that bill needs to be amended. But we are just trying to find a track that tries to do what Councilmember Hoffmann was trying to do, but do it consistent with what the current language of the Charter is. MCINNIS: Thank you. GIFFIN: You’re welcome. Any other comments? Then, sirs, will you please step back. And there were two other people who’ve signed up to give public testimony. Steve Fiala and also Roger Harris, please come forward. Good morning. FIALA: Good morning. GIFFIN: Will you please raise your right hands. Do you swear or affirm to tell the truth on this matter now before the Leeward Hawai‘i County Planning Commission? TESTIFIERS: I do. GIFFIN: Thanks. Starting with you -. Am I saying your name correctly? FIALA: Yes, correct. GIFFIN: Mr. Fiala. 10 EXHIBIT B FIALA: Yes, good morning, Chair and Commissioners. For almost 20 years I worked in California as a trails development program director for East Bay Regional Park District, which is actually one of the largest special districts in the United States, and got to sit in and observe P.U.D. processes for the 32 cities, two counties and ten special districts that we served, 2.5 million people. They can work very well. And they can also be very unscrupulous approach for giving development when there is strong opposition from the community, because they can circumvent public involvement. Commissioner Beaudet, to speak to your transparency comment, you are notified as a bordering property owner up to 500 feet, that would be about two houses into our 50-unit subdivision; so if you are one of these two houses, you might know about the issue, other than that you would not. Bordering subdivisions all in the vicinity would have no opportunity to have any input or knowledge about many of these meetings or decisions. And when we ask for transparency, the reason having the Planning Commissions and the County Councils involved, first of all, you have much broader dissemination of information, not just from attendance at the meetings but from newspaper coverage, from people talking to their friends, from others. It is very, very important for those of us that live in these communities to have some input on these P.U.D.’s. Now, some of the experiences I had, some of these P.U.D.’s were basically utilized, as I said, to circumvent, because rather than have a public meeting, they could go directly to a planning director or a city manager or whatever and get a decision rendered, and basically avoid the larger public review process. For us that live here on this island, our quality of life and what the homes should look like and what the development should look like near us is very important. They shouldn’t be high-density something crammed into an area where residences are on a half acre or a quarter acre lots, and those things can happen with P.U.D.’s because there is very little input often times in the process. I think the bill that’s being proposed is a very good effort, and I think that it should be tweaked a little bit rather than coming up with a full new approach to a bill, and maybe it provides that the County Council makes a recommendation to the Planning Director who then implements and still adheres to the decision process that currently is in place. The other thing I have to say, if something hasn’t, the Charter hasn’t been changed since 1961, you might want to look at it. That’s a long time and a lot of things have changed; in 1961 there was probably one stop light in Kona, and so – you know, maybe not. Either way, it’s very important to our community and to all the communities, I think, in the Kona area that there be a very transparent, a very inclusive and a very comprehensive way for the public to have input into this decision making process. And I appreciate your consideration of that. GIFFIN: Thank you. Director. LEITHEAD TODD: Just for informational purposes, every ten years a comprehensive review of the Charter and amendments are proposed. But I think at every election that we’ve had in the last ten years, there have been Charter amendments on the ballot, because the County Council can initiate amendments, which are then put on the next regularly scheduled election for voting; so it’s been regularly and routinely updated. I believe it was amended around 1969 to do this division. And the current County Council, if they wanted to, could initiate an amendment. The problem is is that the system that we have is that amendment would not show up until the next regularly scheduled election, which would be in 2014, and, you know, that is just the way we do because we don’t do special elections just for Charter amendments. FIALA: I appreciate that. I just think that there may be a way to utilize a well-written bill that seems to be on the right track to find a way to make it work rather than start over. GIFFIN: Director? 11 EXHIBIT B LEITHEAD TODD: The problem that I had in trying to work with the bill that Councilmember Hoffmann produced is that generally you cannot amend the bill to change the original purpose of the bill. And so if the original purpose of the bill was to take the process and move it to the Planning Commission and to the County Council, I can’t take the language out of the bill because then it substantially changes the bill, and then I still have the problem that it runs foul of the Charter, which is why we are doing an entirely different bill because, if the purpose of the bill is just to basically tweak and provide more public input and amend the current process, that’s doable, but I couldn’t take Mr. Hoffmann’s bill and take the Planning Commission out and take the Council out, because the basic intent of the bill was to change the process of approval. And so because there is another Charter provision that says you can’t change the original intent, that’s why I couldn’t work with this bill. GIFFIN: Any other comments, Commissioners? Hearing none, thank you, Mr. Fiala. Roger? HARRIS: Members of the Commission, members of the public, Planning Director, Madam Chairman, I’m going to speak on the other side of this. I am a city planner. I’ve been in the business in Hawai‘i all my life, I mean, my working life, which is now 43 years of planning and zoning and P.U.D.’s. And I’d just like to say this: P.U.D. provision in the Code is a really good provision. It has worked terrifically well. It was put in, the Sierra Club, Bonnie Goodell, everybody, everybody in the Green Communities supported both the P.U.D. and the Project District provisions the last time the Code was amended, and those of us who worked with it know how good it is. It could be that you could have more public meetings or something like that, but you’ve got to realize it allows for flexibility and really more green and environmentally correct planning. It is not an upzoning. The P.U.D. is, you can’t, if you have a half-acre lots, the guy next door, and his zone the same thing, he doesn’t get to do more than a half-acre lots. He is allowed -. That would be a rezoning, and a rezoning would go to the Commission and the Council. What Mr. Hoffmann is asking with this bill is that we turn the P.U.D., which is no density change, no density bonus, into a rezoning, okay? And I think that is a bad idea. I think the property owner has rights, and this gives his team a really good flexible tool to come up with a good plan. And there are many examples of this. For instance, if you had a 21-acre lot and right now zoned five-acre and you split it in the five equal lots, that’s what you get; if you are using the P.U.D. provision, you can split it into five lots, no density increase at all, but you can get three two-acre lots, let’s say, and one remainder lot. That’s what the P.U.D. allows, and if you are a property owner, I think you should be able to do that, subject to all kinds of conditions, which are typical. It’s like a subdivision process, and I think it works good. The system is not broken. The street I live on, nobody knows, but it’s a P.U.D., it’s a P.U.D. subdivision. I’m quite sure Hualālai Colony is, if it’s not a P.U.D. subdivision, it’s a variance subdivision. These things are done all the time. The Kona Community Development Plan calls for a clustering of densities in South Kona and other places in all of Kona, and the P.U.D. provision allows that to happen. If it was an upzoning, it has to go to Council; but it’s not an upzoning. A lot of P.U.D. provisions around the world and wherever are bonus, they have a bonus in there; you get a reward, you get two extra lots or something. But here, it’s just straight development like a subdivision. I’ll be happy to answer any questions. Thank you. GIFFIN: Thank you. Director. LEITHEAD TODD: I think the most contentious P.U.D. recently, for background information, was Ag-5 zoning and the proposal was going to create a series of two-acre lots with one large remainder lot. Based on the existing zoning, you would have been able to have 14 lots; based on the P.U.D., 12 EXHIBIT B they ended up with 14 lots, but 13 of them were basically two-acre lots with one very large lot left. And the neighboring subdivisions who are on five-acre lots had some objection to that because they felt that it was increasing density in the area by going to the two-acre lots; however, you know, and I don’t want to debate that, but I’m saying that for some people, when they see the smaller lots next door, they do view it as increasing the density even though the total number of lots remains the same, because they want five-acre, they see two-acre next door, that they feel the guys have gotten around the zoning and haven’t had to rezone and got that. I think the biggest issue for a lot of people is transparency and whether they get notice, whether they get an opportunity to provide input. And most P.U.D.’s have not been contentious in all honesty; they have not been a huge problem for the community. So it’s just only one recently that that was an issue, and it had to do with five-acre two-acre, but it also had to do with whether the guy developing had rights to access the existing roads, whether there were other factors in the CDP; so it had a number of different issues. And I think that that had a lot to do with the impetus for Mr. Hoffmann’s bill was the particular P.U.D. where there was public outcry over the way it was handled. We had another P.U.D. where there was opposition to it, but the problem was that the opposition wasn’t to the P.U.D. or the layout; it was the neighboring community wanted a side agreement to get water from the developer, which had nothing to do with the P.U.D., but, you know, it came up in the context. So different issues get triggered in different areas. What we are trying to ultimately move to, I think, is a process where there is more public input, public opportunity, and whether it’s Bill 291 or an alternative bill that we subsequently propose, I think that that is the general direction that we are hearing from the public that they want an opportunity. And sometimes it’s that the lack of an opportunity bleats fear about what’s going to go on next door, and I think having those community meetings would probably be able to take care of a lot of the community’s concern. I think a lot of people, just that they don’t get their questions answered, so they don’t know what’s going on. And I think that we’ve evolved to a point where people want more opportunity, and I think that’s ultimately the direction that we’re going to end up going whether it’s this bill or another bill. GIFFIN: Thank you. Commissioners, any questions of Roger Harris or of the Planning Director? Thank you. Thank you very much, both of you. Commissioners, I’d like to direct your attention to Page 3 of the background report that was passed out to you, in the last paragraph is the recommendation. And I know that all of us have heard enough reasons why, but I would like to either have some discussion on this recommendation or -. Director. LEITHEAD TODD: Madam Chair, just one other thing. Maija, can you go back to the -. Just because we’ve got members of the public here, I want to explain something. You know where you had Ka‘iminani and you had the zoning – it actually was a prior, there was the Kalaoa one, and not this one. Because I think people might have been wondering what was going on, and I’m sorry, it really should have been brought up then; but I wanted to explain something to people because people were probably wondering how could that happen. Go back. There. You’ll notice that you have all that Ag-5 zoning, but you’ve basically got 10,000-square foot or 20,000-square foot lots; that goes back to a period of time when agriculturally zoned land in the State of Hawai‘i could be subdivided for residential lots without having to do rezoning, which is why -. I live on a 10,000-square foot lot in Hilo that’s zoned Ag-20 acres. And these are all like 1960’s and 70’s subdivisions. So I just wanted to make sure that, you know, that was not a P.U.D., that was not some type of action of the Planning Department; this was, previously, they allowed this to occur, and so we have many subdivisions -. This is Ka‘iminani, and you’ll notice there is nobody that has a five-acre lot there, which is, it was approved that it was done because there was so much ag land and the State allowed this to occur. That’s no longer possible; you have to go and rezone the property, which is why you see RS10 for the Kalaoa property even though everybody else is Ag-5, 13 EXHIBIT B but the lot sizes are very similar, because the law changed, and you now have to go through a rezoning process to do it. GIFFIN: Commissioner Bowman. BOWMAN: I’m just curious. So the Council, or the powers that be, can’t suggest a rezoning so they all be RS10? Wouldn’t that increase the tax base? LEITHEAD TODD: It wouldn’t change the tax base because they tax it on the use, and you can’t get an ag exemption because you are not doing ag. And most of these subdivisions were created with CC&R’s that preclude, like my CC&R’s, I can’t have a chicken, I can’t have a goat, the CC&R’s preclude me from doing most agricultural activities even though the zoning is Agricultural, because it was created as a residential subdivision. You can no longer do this; if it’s Ag-5, you have to do a five-acre subdivision unless you do a P.U.D., which allows you to kind of make some smaller lots in exchange for having one bigger lot where you create more open space. But you can no longer take land that has that type of zoning and create residential lots on it any longer. BOWMAN: Thank you. GIFFIN: Any other questions? And, Commissioners, Mr. Torigoe just pointed out to me that, I know you are aware, that at the bottom of the recommendation the last sentence is not on the table today, and that in fact we are simply looking at Bill 291 in its current form. BOWMAN: I just want to thank the public for being here because I think it’s very important for us to hear your testimony and, you know, your request for transparency. I do know that the very diligent work of the County with the CDP’s and the Action Committees is something that I think affords more transparency for our communities. I understand that, I believe I understand, that the Director’s request is not against the intent of the bill but, I guess, the legality of it. So I, with this being said, I would like to make a motion. But if there’s other conversations, then please do. GIFFIN: Any other conversations, as Commissioner Bowman mentioned? Hearing none, Commissioner Bowman. BOWMAN: I would like to recommend that the Planning Commission send an unfavorable recommendation to the County Council regarding Bill No. 291 in its current form. GIFFIN: Thank you. Do I hear a second? HICKCOX: Second. GIFFIN: It’s been moved by Commissioner Bowman and seconded by Commissioner Hickcox that we send an unfavorable recommendation to the County Council regarding Bill 291 in its current form. Any discussion? Hearing none, Maija. COTTLE: Thank you, Madam Chair. Commissioner Bowman? BOWMAN: Aye. 14 EXHIBIT B COTTLE: Commissioner Nelson? NELSON: Aye. COTTLE: Commissioner Beaudet? BEAUDET: Aye. COTTLE: Commissioner Hickcox? HICKCOX: Aye. COTTLE: Commissioner Whittemore? WHITTEMORE: Aye. COTTLE: And Madam Chair? GIFFIN: Aye. COTTLE: Okay, the motion to send an unfavorable recommendation passes, six-zero. GIFFIN: Thank you very much. And thank you very much, members of the public. LEITHEAD TODD: For those members of the public that are here and interested in this, and if you want to send me recommendations on what a P.U.D. amendment bill should be after you get the version we have, please try and get those in to me within the next two weeks, so after you get the email version. I’d appreciate that. Then I can look at whether I can incorporate it into my proposed bill. GIFFIN: And then it can appear on next month’s agenda. LEITHEAD TODD: Sure. The discussion ended at 11:03 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 15 EXHIBIT B