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HomeMy WebLinkAbout2013-02-21 Leeward Exh A - Director Initiated Amend re PUD LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT FEBRUARY 21, 2013 PLANNING DIRECTOR INITIATED AMENDMENT A regularly advertised hearing on the TO ZONING CODE RELATING TO PLANNED UNIT DEVELOPMENT (P.U.D.) was called to order at 9:42 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, Thomas Hickcox and Thomas Whittemore ABSENT AND EXCUSED: Lani Bowman, Richard Nelson, III and Wayne Iokepa ALSO PRESENT: BJ Leithead Todd (Planning Director), Daryn Arai (Planning Program Manager), Jeff Darrow (Planner) and Noriko Sauer (Commission Secretary) And approximately 16 people from the public in attendance. INITIATOR: PLANNING DIRECTOR 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 the proposed bill is to clarify the purpose of a P.U.D., clarify procedural guidelines for submitting a P.U.D. application, define the requirements of a P.U.D. project, and to provide an opportunity for greater community involvement in the 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. Amends Section 25-6-3 relating to requirements of application for P.U.D. permit. Amends Section 25-6-4 relating to notice of action on P.U.D. application. Amends Section 25-6-5 relating to procedure for processing application when use not permitted in district. Amends Section 25-6-6 relating to actions by director on P.U.D. permit applications. Adds Section 25-6-7 relating to community meeting required prior to submittal of an application for a P.U.D.. Amends Section 25-6-10 relating to criteria for granting a P.U.D. permit. Amends Section 25-6-11 relating to height exceptions authorized. Amends Section 25-6-12 relating to approval of variances, use permits and plan approvals issued under P.U.D. permit. 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 extensions and amendments. Amends Section 25-6-15 relating to appeals. GIFFIN: The first agenda item is initiated by our Planning Director. It is an amendment to Chapter 25, Article 6, Division 1 of the Hawai‘i County Code 1983, 2005 Edition, as amended, relating to Planned Unit Development, or P.U.D. Daryn? ARAI: Thank you very much, Madam Chairwoman. Good morning, Commissioners. Good morning, ladies and gentlemen. Thank you for coming today. If I may direct your attention to our presentation screen. The item before you today is a proposed bill amending the county Zoning Code regarding Planned Unit Developments. The bill that you have before you today is a bill being offered by the Planning Director in response to a previous bill that was introduced by the County 1 EXHIBIT A Council regarding Planned Unit Development. As you may recall, at your last meeting on December 13, 2012, Bill No. 291 was presented to you along with the Director’s recommendation. That meeting resulted in the Commission issuing an unfavorable recommendation on Bill 291. At that meeting we wanted to also hear the Director’s proposed bill, which she offered as an alternative to Bill 291; however, at that meeting, as you may recall, we were informed that we needed to properly agendize the Director’s bill, which is why you have the Director’s bill being scheduled for today’s meeting. Just to give you a little bit of history as to why we are here today, when you first heard Bill 291 back in December of last year, the proposed bill offered to add Planning Commissions and the County Council to the review and approval process for a P.U.D. permit. Currently, a P.U.D. permit is an administratively issued permit, meaning that it’s issued by the Planning Director and does not require hearings or actions by the Planning Commission or the County Council. Bill 291 attempted to clarify procedural guidelines, as well as defined the requirements of a P.U.D. permit. As I mentioned earlier, P.U.D. permits currently are issued administratively by the Planning Director. This is a diagram showing the process. At the very top, you’ll see the current Planned Unit Development approval process by which an application comes into the office, notice of the application is placed in the newspaper, the applicant is required to post a sign of the P.U.D. application on the property, and the applicant is also required to provide notice to surrounding property owners; if the property happens to be situated in the state land use Urban district, then the radius for notification is 300 feet; if it’s in the Agricultural District, it’s a 500-foot radius. The public, upon being notified of the submittal of this P.U.D. application, can then prepare letters to the Planning Director offering their comments one way or the other regarding the proposed P.U.D. application. Within 60 days after the submittal of the application and upon considering any testimony or comments offered by the general public, the Planning Director will then render her decision. As you may recall, Bill 291 proposed to follow a process very similar to how you handle change of zone applications whereby the Planning Department, or Planning Director, instead of offering a decision here, would actually offer a recommendation for consideration by the Planning Commission, which would then conduct a public meeting within the district where the project is being situated, and then offer its recommendation to the County Council, which would then conduct its own series of meetings and ultimately make a decision on whether to approve or to deny. So, again, the difference being offered by Bill 291 was to include the Planning Commission and the County Council as part of the decision making process. To briefly explain what a P.U.D. is, Planned Unit Development permits essentially allow for a comprehensive set of variances from the Zoning and Subdivision Codes relating to building site standards such as lot width and size, building heights, yards, and open space and road standards. A P.U.D. permit, if approved, cannot introduce a use that is not permitted by the current underlying zoning district classification. Changing the approval from the Director to the County Council may be in violation of the County Charter, because the County Charter provides the Planning Director with the authority to render decision on proposed variances pursuant to law. The Planned Unit Development permit is basically a series of variances, and that’s why there is a concern that Bill 291 would be implementing something that would be violative of the County Charter – and basically I recited that just now, sorry, getting ahead of myself. The Planning Department staff did meet with the author of Bill No. 291, former Councilperson Pete Hoffmann, in order to understand the concerns that resulted in the introduction of the bill. As an 2 EXHIBIT A alternative to Bill 291, the Director is proposing a bill that is the subject of today’s meeting, and the bill would require applicants to conduct a community meeting prior to submitting a P.U.D. application, and secondly, to ensure that the P.U.D. development must be consistent with the intent of community development plans for the particular area. So there were components within Bill 291 that we thought were very reasonable and would actually enhance public interaction and involvement within the P.U.D. review process. Holding a community meeting prior to the submittal of a P.U.D. application is both beneficial to the applicant and the community, because it allows for the community’s concerns to be identified early on in the process so that the applicant can then amend their development plan as needed prior to its formal submission to the Planning Department. And I should note the bill as drafted would require that the community meeting be held no more than 60 days prior to the submittal of the application; so it kind of remains fresh. And this is a graph just showing the process as being proposed by the Planning Director where the applicant in the first box would conduct the community meetings in order to solicit those comments and concerns from the community, and then the notice of filing of the application in the newspapers, the posting of a sign on the property, and notice of the meeting to surrounding property owners will follow the same track as currently required under the current P.U.D. process. And then finally, the Director will be making a decision on the P.U.D. application, taking into account all of the comments collected during the review process, as well as part of, as was solicited during the prior community meeting. So with that said, the Planning Director is offering her version of proposed amendments to the Zoning Code regarding Planned Unit Developments. With that, I stand ready to answer any questions. GIFFIN: Thank you. Director. LEITHEAD TODD: Yeah, I just wanted to add for the information of the audience that one thing that is not up there is it’s not just the notice is mailed to the surrounding property owners; when the Department receives the application, we routinely send it out to other departments and agencies for review and comment, and typically we give them about 30 days to respond to us. So we get comments from DEM that might be on whether there is a solid waste management plan or whether there is a sewer system. We might get comments from DPW on the roads and the variances that are applied for there. And we take those into consideration before coming up with a recommendation. The other thing that’s missing there is that any decision of the director can be appealed to the Board of Appeals. The difference with the County Council decision, Bill 291, is that an appeal from the County Council goes immediately to Circuit Court. With our system, planning director’s decisions go to Board of Appeals, and then if the result is not to the liking of any of the parties, then it can go to Circuit Court from there. GIFFIN: Thank you. And thank you, Daryn. Daryn, did you want to add something? ARAI: Sure, very quickly. My apologies. I failed to mention that we did receive some communication just prior to today’s hearing. One of them was a letter from Cory Harden that also included testimonies from some other individuals; that was provided to you, you should have hardcopies before you. Another was a letter from Mac McInnis, that was dated February 19; copies again have been provided to you. And finally – oh, I’m sorry – we also have a letter from Normita Error; copies were provided to you. I also – and I’m not sure why I don’t have it right in front of 3 EXHIBIT A me – but Mrs. Nimori also submitted testimony, and she did provide copies and we’ve also distributed the testimony to you as well. GIFFIN: Thank you, Daryn. Anything else you want to add? ARAI: No. GIFFIN: Okay. Members of the Commission, any questions of Daryn? Daryn, I have a question. I know the result of our last action on Bill 291. Where is Bill 291 now as we speak? ARAI: The, 291 was heard by both the Windward and Leeward Planning Commissions. Both Commissions forwarded unfavorable recommendations on the bill. Those recommendations now reside at the County Council; however, we did ask the County Council to delay its hearings on Bill 291 so that your actions or decisions regarding the Director initiated P.U.D. bill can catch up to it, and that way they can at least consider both bills at the same time, which we think is a prudent thing to do. GIFFIN: Thank you. With that, because the applicant is really the Planning Director, and I know Daryn gave us a synopsis of your recommendation, I mean your background report, is there anything else, Director, you would like to add? LEITHEAD TODD: What we do now with all applications that require notice to neighbors is we routinely send a, not a copy of the entire application, but a notice and a description of the application to our action committees. And then the action committees, if they are interested, can put it on their agenda and have a presentation done, and then make comments on that. We’ve done that twice with South Kohala with the Puakō 1010 P.U.D., as well as the Waiki‘i P.U.D. And that seems to be working out. That’s not something, though, that’s specifically written in our rules or in the code; that’s just a practice that, we reached an agreement, because what we were doing previous to that was we would do, like,twice a month, we would list the subdivision applications, and the feedback we had from the action committees was they didn’t feel that they had enough time from the time of the general public notice to decide whether they were going to put it on their agenda since they only meet once a month. So now it’s routinely sent to them at the same time that it goes out to the other agencies for comment, and that was agreement reached in terms of trying to provide them notice and give them an opportunity. And I might note that despite having gone through the process and despite having the action committee agree with the recommendations on the P.U.D., we still have one that’s going up on an appeal to Board of Appeals. GIFFIN: Okay, Commissioners, any questions of, in this instance, the applicant who is our Planning Director? Hearing none, this morning there are – one, two, three, four, five – six people who have signed up to testify. And I would like to remind members of the public that if you have not and you would like to give public testimony this morning, please go up to the staff and indicate such. Imminently, I would like to please call Tomoe Nimori, Normita Error – if I’m mispronouncing your name, please, I’m sorry in advance – and Ken Melrose. Please come up. Thank you. And thanks, Ken, for helping the ladies. 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. 4 EXHIBIT A GIFFIN: All right. Starting with you, ma’am, on my left, will you please state your name. NIMORI: Tomoe Nimori. GIFFIN: All right. Would you like to begin your testimony? NIMORI: Others testifying today may focus on transparency -. GIFFIN: I’m sorry, please -. Yes. And Members of, excuse me, Members of the Commission, as Daryn stated, she has submitted written testimony. Ma’am? NIMORI: Other persons testifying today may focus on transparency, as the proposed amendment moves to provide an opportunity to greater community involvement. As a third generation resident of Kona, I ask you to consider greater community involvement from the perspective of historical Hawaiian land use practices. Agriculture has been the primary land use for 1,200 years influenced by the largely unchanged or unchangeable aspects of geology, soils, climate and hydrography. The Kona Field System reflects this. I would like to draw your attention to Page 2, Section 25-6-3, Item (F). A preliminary site plan of the P.U.D. lists nine items one of which alludes to this concept of respect for the land. If you will look on Item (4), “Natural, historic, and cultural features,” simply listing such features is inadequate in light of historic land use. I ask you to elaborate Item (4) to state: Natural, historic, and cultural features including the geology, soils, climate and hydrography of the Kona Field System within the area of the Planned Use (sic) Development. On Page 5, Section 25-6-7 (4), I recommend the same wording to this section. The approval process on Page 7, (e), my statement of concern: “If the director fails to render a decision on the site plans within the prescribed period, the site plans shall be considered approved without further certification by the director.” My recommendation for Section 25-6-3 and Section 25-6-7 may require more time beyond the sixty days allowed. I recommend ninety days to enable the applicant and the Planning Director to conduct a thorough research of the site of the Planned Use (sic) Development. GIFFIN: Thank you very much. Commissioner, any questions of Ms. Nimori? Hearing none, ma’am, than you very much. And you, will you please state your name. ERROR: Good morning. GIFFIN: Good morning. ERROR: I’m Normita Error, and I live on Hua‘ai Street, which is near the horseshoe Bend on Hualālai Road. I’m here -. GIFFIN: Excuse me, Ms. Error. Commissioners, I just want to remind you, as Daryn stated earlier, that she did submit written testimony. Please continue. 5 EXHIBIT A ERROR: I’m here to plea for more transparency in the P.U.D. approval process, and I’ll tell you why. Our neighborhood has already suffered from a project that slipped through a couple of years ago because the Planning Director did not have enough staff to make a proper review. And I don’t believe that situation has changed, and we would like to have the opportunity for a final hearing with the County Council before a P.U.D. approval is given. I know the Planning Director feels that it would solve the situation, if the developer met with the surrounding property owners to work out their differences. And that’s a good idea, but it’s not enough. What if they meet and still cannot agree on what is appropriate? In this previous situation that slipped through, the developer, after approval, asked the Planning Director for 17 variances to the regulations, and 15 were approved without further opportunity for the public to object. In addition, as it turned out, a full 68 percent of those lots were below the minimum size for an RS-10 zoning classification. Why have a minimum? Please do not leave us without recourse to at least present our case. It’s all about transparency. Thank you. GIFFIN: Thank you. Commissioners, any questions of Ms. Error? Hearing none, thank you very much. Ken? MELROSE: Good morning. My name is Ken Melrose. And I’ll submit this afterwards; I apologize for not being timely. Good morning, and thank you for the opportunity to provide input on the proposed revisions to the very useful P.U.D. process. I support the Director initiated version, and offer the following comments. Like subdivision applications, a P.U.D. is the division of existing zoned land, and the process should remain ministerial. The use of P.U.D. guidelines allows flexible configurations of newly created lots in a way that allows preservation of sensitive areas, open space and agricultural uses while also permitting realization of the potential of existing entitlement densities in a way that is compatible with surrounding community. The recognition in Sections 25-6-3, 6 and 10 of the applicable community development plan is a very significant addition. The Kona Community Development Plan proposed a paradigm shift in land use towards smart growth policies, which concentrate growth in compact nodes and preserve our rural sense of place and our agricultural potential, without affecting existing landowner entitlements. The P.U.D. revisions proposed seem to further reinforce and help implement our policies, and for this I’m grateful. There are a couple of portions of the proposed wording that concern me, however. In 25-6-6 (d), as a potential applicant, I do not like the change from automatic approval to automatic denial of an application by untimely review by the Department; the timing for it being proposed is being extended from 60 to 90 days to help with the paperwork flow. In 25-6-7 (b), the new pre- application community meeting “shall be served” causes concerns. This is on community members around; as I’m only aware of a form of service being by a sheriff, that wording concerns me and I think it might be revised appropriately. And lastly, in 25-6-11, the height exemptions authorized should be those already allowed in the zoning designation and not increased to 75 feet. For Ag zoning, the height is 45 feet, and to my knowledge the only places where zoning is allowed, excuse me, additional height is allowed by zoning is in Resort zones and in the Hilo area where zoning 6 EXHIBIT A limits would be applied. So thank you for the consideration of these comments, and I look forward to these revisions to the P.U.D. guidelines. Aloha. GIFFIN: Thank you. Commissioners, any questions of Ken Melrose? Hearing none, thank you, the three of you. LEITHEAD TODD: Madam Chair? GIFFIN: I’m sorry. Director. LEITHEAD TODD: I just wanted to clarify. I think, looking at some of the testimony coming in, it seems that, I think some people are looking at Bill 291 and not the bill that’s actually on our agenda today. So you’re going to have to take some of Ms. Nimori’s comments, which referred to 25-6-3 (F) are actually, in the current bill before your consideration, would be applicable to 25-6-3 (G) rather than 3 (F), because 3 (G) is where the reference to natural, historic, and cultural features; because the numbering and where certain language is in the two different versions of the bill are in different locations, so if you look at Ms. Nimori’s testimony, it would be to Page 3 of the proposed bill and it would be 25-6-3 (G). And then similarly, I think you need to double-check whether her reference to 25-6-7 (4) is applicable to this or needs to go to a different section. And that was the other thing is like Ms. Nimori’s comments about the 60 days, the current bill under consideration today changes it from 60 to 90 days and, as Mr. Melrose pointed out, changed it from an automatic approval to a denial, if we didn’t render a decision, and that was -. So it’s a significant difference. GIFFIN: Thank you. Commissioners, any other questions? Thank you. Thank you for being of assistance. I would like to call Mary Kay McInnis, Mac McInnis and Tom Madson. Please come forward. Good morning, and thank you. 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: Yes. GIFFIN: Thank you. Starting with you, ma’am, your name, and you may begin your testimony. M. K. McINNIS: My name is Mary Kay McInnis. Good morning, Members of the Commission. My name is Mary Kay McInnis. I live at 75-661 Hua‘ai Street, here in beautiful Kailua-Kona. I’ve heard a lot of interesting and meaningful testimony this morning. The opinion shared by Mrs. Error and Mrs. Nimori were considerable and expressed much more eloquently than I could offer to you this morning. Instead, I would ask the Commission a question, and ask if you would help in understanding the cumbersome and confusing process known as P.U.D. approval. I’ve heard the terms “transparency,” “public input” and “cooperation” batted about quite a bit today, and I think we can all agree ultimately that we’d all like to achieve this. So here is what concerns and confounds me. I do not think I’m going out on the limb when I say it concerns and confounds many of us. Using the example Mrs. Error alluded to earlier is the rezoning amendment bill 163, A- 5a to RS-10. This is TMK 7-5-017:042. This rezoning was approved. The P.U.D. was submitted and approved with 15 of 17 variances. Now, I’m not a real estate professional, I’m not a developer, 7 EXHIBIT A I’m not a real estate expert of any kind, and I don’t profess to be. But I am reasonably intelligent and fairly well educated. So I look at this thing, and I say, okay, it’s RS-10, so that should mean that these are 10,000-square foot lots, and I go and I look at it, and I say, okay, but I look and I see of the 53 lots in here exactly twelve of them are 10,000 square feet or greater. So I think to myself at this point, what does this mean? If that’s what’s going on, then what is RS-10 mean? It’s a random number. And this is, this is where all the confusion begins. And if we are going to have rezoning and it’s just a random number, then I don’t understand and this is where the confusion begins. And I think people find this distasteful and distrustful. So to try to better understand and decipher the rezoning, you begin to read the district rezoning regulations, which I’ve done. And I think, well, this is pretty straightforward, and then I get down to minimum building site areas, 7,500 square feet, and I think, well, this is interesting, I think, okay, except, wait, out comes my aforementioned P.U.D. plan, and I see of the 53 lots and the twelve remaining lots exceeding 10,000 square feet, and incredible 79 percent under the required amount, 42 lots, 14 are less than 7,500 square feet, which the county law requires, the zoning law requires. So now all this smoke and mirrors and hocus pocus comes into play, and this, with these building variances, and I don’t understand. I don’t understand how this happens. All of this happens with no, nobody’s input; nobody knows what happens. The builder goes in and this meeting happens, the public doesn’t know, and all these changes happen. And people have a right to understand. And I know that, Ms. Todd, you have the right and the responsibility to make these decisions, and you all are charged with this responsibility to make these decisions. And I understand that sometimes in the art of compromise that people are unhappy, and that you have to make decisions for public safety and for public good. But what I don’t understand is why the public isn’t allowed to know these reasons and why we aren’t allowed to hear these negotiations. And if it’s a proprietary reason or a safety reason or a security reason, I can see why that’s behind closed doors. But in lieu of that, why, why all the cloak and dagger and why all the secrecy? And I think that’s what, that’s where the bone of contention is. So if somebody can explain to me why it’s done this way, then I think we’ll all feel a lot better about it. And having a meeting prior to a decision and we can all say, well, we don’t like this or we don’t like small lots or we don’t like whatever we don’t like, is one thing; but what happens is your decision is made, and then we find out later, but we never know why, and all we see is we have an area that once had zoning for one house on five acres and the next thing we know is we have a subdivision that has one house on 6,100 square feet, and that’s the last thing we ever hear about it. So those are the answers and those are the things I think I would like to have answers on, and those are the things I think most of our neighbors and most of the community would like to know. GIFFIN: Thank you. Director? LEITHEAD TODD: I thought I’d explain a little bit. Generally, when a P.U.D. comes in and it has specific zoning and, let’s say that you have a piece of property and you have RS-10 zoning, and if you were to divide it up – let’s assume for argument’s sake that it’s a flat piece of land, so you can put the roads in a straight line and you can have nice, neat, little rectangular lots – then let’s say that for your property you could have a total of 50 lots based on the zoning and based on the amount of land that you have, and you can get 50 10,000-square foot lots; but the reality is is that it’s not a flat piece of land, that it’s next to a road that’s not straight. So in order to connect to the road and have sight distance where you are going to place the connecting road, let’s say it’s Hualālai Road, that in order to have the sight distance, the road needs to connect to it at a certain point in order to have 8 EXHIBIT A adequate sight distance. The road has to have certain slopes, and has to have certain dimensions to it. Your land is not flat; your land is like this or like this or it could be like that. So sometimes in order to layout the roads and have a road connect to the point on the public road where you have adequate sight distance and where Public Works is telling you this is where we want the road to connect, if you took a straight line, that might connect here, but if you are looking at sight distance and topography, maybe it connects there. But that road needs to connect from here to another road on another piece of property that’s not in a straight line; so the road has got to go kind of like that, and part of it’s topography, part of it’s slope. So when they are looking at engineering it, they try to figure that out, and it means that frequently the lots cannot be nice little rectangles because of where you put the roads. That has a lot to do with it. Sometimes on a P.U.D., it may be that there is certain features on the property that want to be protected; so that reduces the amount of buildable space you have, so they want to reconfigure, if you’ve got burial sites, if you’ve got other features you want to protect. So typically, when someone comes in, it’s because they are not able to layout nice, neat, little rectangular lines for the roads and the lots. They cannot increase the total density. If they were allowed to have 50 10,000-square foot lots, the maximum number of lots that they can get in a P.U.D. is 50 lots; they cannot get 100 5,000-square foot lots. They get 50 lots; some of them may be 10,000, some of them may be less than that, but that’s the maximum number of lots that they can get. And that’s what I think a lot of people don’t understand. Because the one we had in upper Kona, the zoning was Ag-5, and the guys wanted to do two-acre lots and then there would be this one large leftover lot, which would be about – I can’t remember exactly whether it was 45 or 48 acres – so you get one large lot and a number of smaller two-acre lots. And that’s actually consistent with what the Kona CDP calls for, which is to try and cluster the development and leave more open space. So the total density, the total number of lots that they get out of it is the same. But the size of lots changes, where the roads go may accommodate the topography, it may be that there is natural features that you want to preserve. Typically, the information should be in the application; when somebody submits an application, it should list why they should have a layout for it. And I don’t know whether people go and read the whole application, or they just see the letter and then they see the map, so they don’t understand what’s in the application. It may be that we need to have more information. It may be that our decision needs to have a better explanation of why a specific variance was granted. Because we are now doing that with some of our variance letters because we’ve had this come up afterwards; people said, well, why did you grant it or what was the reason for it, so we are revamping the way our letters are written, when we approve stuff, in order to give more of an explanation that somebody can read it and say, oh, that’s why that variance got granted, or that’s why the road is where it is. And so it’s kind of a fluid process that we are doing that. And also, you know, the inclusion recently of the action committees. And they were only interested, I think, in the larger ones, because these were very large P.U.D.’s. Waiki‘i, actually, the initial P.U.D. application went out to the neighbors, we had six letters of objection to the size of the lots, the applicant withdrew the initial P.U.D. application and then submitted a new one that took into consideration the objections of the neighbors; because the objections of the neighbors were they didn’t want any lots less than ten acres, and the original P.U.D. did have some lots that were smaller than ten, and so they pulled it and resubmitted and those lots are now, the smallest lot is ten and the larger lots are 40 acres. I would not, you know, I would be willing to entertain the thought that, you know, if there were language that if the action committee wanted to hold a hearing on it, that we would do it and notice would go out to the neighbors, something like that, because the action committee would be in the 9 EXHIBIT A position to look at whether it’s consistent with the CDP. The problem with some of this is we don’t have CDP’s for the entire island. We don’t have CDP’s in some cases that really address some of these issues. And it’s the same thing with Ms. Nimori’s comment earlier about the Kona Field System; that language is specific to Kona whereas the code that we are trying to write has to cover the entire island. And so if you are going to propose amendments, the amendments need to be worded in such a way that it would take into consideration not just a specific area but the entire island in the way you word it. GIFFIN: Commissioners, any questions of the Planning Director? I do -. M. K. McINNIS: I have one more little tiny, just so I understand, if you don’t mind. GIFFIN: Excuse me, I need to recognize you. M. K. McINNIS: Oh, I’m sorry, excuse me. GIFFIN: It’s quite all right. Do you want to react to what the Director said? Please go ahead. M. K. McINNIS: I just, I want to make sure that I understood just the one part. So when you grant the rezoning for the piece of property that, as example that we were talking about, so you have however many acres it is that was rezoned, you are guaranteed, you are allowed to have so many lots just willy-nilly in this many acres of zoning before you even have done anything; I can go out and I can buy 20 acres of whatever and have it rezoned and I can -. I don’t quite understand that when I don’t -. I understand about topography and easements and roads and drainage and all those sorts of things have to go into it. So I don’t quite understand how -. I understand a few variances, but I don’t understand if -. Because lots have to be adjusted, and you can’t just cookie-cutter them out – I understand we don’t live in Nebraska, I understand that. But I don’t quite understand when you have to accommodate for easements and roads and drainage and special features and all the things that we have, living here, so I don’t quite understand, though, just because I bought 20 acres of, or however many acres it is, it happens to be, it has been rezoned, how I can necessarily count on using all those to put X number of houses on to kind of make the math work. And if you’ll explain that to me, I would appreciate that. GIFFIN: Director? LEITHEAD TODD: Well, zoning is really about density, and then subdivision is how you cut up your density. And what we typically do, when we look at this, is – let’s say your 20 acres, now, typically, if you divided it by the lot size, you would get X number of lots – we typically subtract out what we assume is going to be the roads so that, even though theoretically you could divide it and you were going to get 80 lots out of it, we have a calculation where we assume roads are going to take up so much space, so we subtract that out, and instead of 80, we may say that, you know, you actually can only get about 70 lots out of this. So we look at that as being the maximum number of lots that you can get out of that, if it was RS-10 and you had 20 acres. The reason you end up doing P.U.D.’s sometimes is because of topo and roads. And so the P.U.D. allows them some flexibility, and then they can try to get to the maximum number of, you know, 70, 75 or what is, in configuring it. And so we usually try to accommodate that, because we look at that as trying to accommodate the differences in the topo and trying to treat different property owners somewhat similar in the sense that if you have 20 acres, and you can subdivide 75, and you’ve got 20 acres 10 EXHIBIT A and you can subdivide 25, but because we want the road a certain way or we have certain requirements, we try to accommodate it so that you can still get the 75 lots but it’s not necessarily each in a rectangle and it’s not necessarily the same size. Usually, and if I recall right, I think the one that was doing the rezoning, I think they were saying that they were going to come in for a P.U.D. at the time, because, I think when, the discussion was that it was clear that you couldn’t do the roads exactly the way the roads, you know, would lay out evenly, and I think the discussion occurred at the County Council that, you know, there was going to be some changes and they would be coming in, you know. I may be wrong but I thought that there was the discussion. Similarly, there is another scheduled, this one got withdrawn, but there is another rezoning in this area off of Hualālai Road where the landowner was going to come in for reclassification to Urban, rezoning, I think, to RS-10, and he was also very upfront about the fact that he was going to come in for a P.U.D., and has in fact met with the community. So it’s, you know, in a lot of these cases, when it closely follows a rezoning, I think the public is aware, and the Council is aware, that the applicant is coming in, because this guy, at least the one that I know on Hualālai Road, he’s been very upfront that that’s what his goal is, because he is trying to configure the lots. I think that frustration for, and possibly the fear, for people living in an area is if you are in an area that’s zoned RS-10 and next door it gets zoned RS-10, there is an expectation that the lots are going to be the same size as the lots in your subdivision. And the fear is that if the lots are smaller next door, that it’s going to impact your enjoyment of your property in a sense that it may lessen the value of your land, if the lots next door are smaller. People also get concerned about view planes, traffic, you know, and they also sometimes think that density is actually increasing in terms of, if they see a smaller lot, they are thinking that, oh, hey, he’s getting more than his 50 lots or he’s getting more than his 75. And it’s the concern that there is going to be an impact to you. Is my view plane impacted? Is my quiet enjoyment impacted? Is my property value impacted? I don’t know that that’s quantifiable. I don’t know if historically there is any evidence that having a P.U.D. next door in fact lowers your property value; but I know that that is frequently the concern of people in the community, and also whether it opens the door to further rezoning, further smaller lots, and so that what they thought they were buying into ends up not being what, you know, the community looks like they -. And so that’s some of the fear that’s driven. The one where we had the two-acre lots in the five acres, I think, you know, while there were concerns over other issues, I think it initially started with, hey, I bought into an area where it’s five acres, so the lots next door should be five acres, and, you know, he’s getting away with something because, without having to rezone the property, they are getting smaller lot sizes, so they are increasing density, even though it’s the same number of total lots. It’s the concern that what’s happening next door, that this isn’t what I moved into; I moved into Ag, I moved into Rural, I moved into a certain size. I don’t know how you can totally take care of that concern without just totally eliminating P.U.D.’s, because the P.U.D., as it’s set up, does allow for this shifting of the sizes and location. And in fact, the goal of the CDP is for us to try and do this more, not so much in the urban areas but in the rural areas, to try and preserve the open area and preserve ag land, because we have a lot of existing zoning, so -. I think there was, I’m trying to remember, there was one big P.U.D. we did where the zoning was like Ag-20, but it was several-thousand acres of land. And so the tradeoff on the P.U.D. was they got some smaller lots in one area in exchange for going from a 20-acre lot to like a 400-acre lot here, you know, a 600-acre lot, I think one might be a 1,200-acre lot, and they can never subdivide the 1,200 acres, they can never subdivide the 400; but they did get in one area less then 20-acre lots. And so what they did is they looked at the total number of 20-acre lots that they theoretically could get, they 11 EXHIBIT A came in with a smaller number of lots, and that was a tradeoff, because it protected the bigger acres. But we seldom have a P.U.D. where it’s a couple thousand acres; it’s typically more a 15-acre or, because people don’t like to go to the state Land Use Commission, it’s slightly less than 15 acres. And I think people get concerned because the two-step process is confusing, and it also, people, what they see happening and what they thought was going to happen ends up being two different things. So I think that’s why there is a lot of interest in the P.U.D.’s. I don’t know that this takes care of all of the concerns. It seems like what you are really asking for is that after the application has been submitted and prior to me making a decision on it, that you would like a public opportunity to come and tell me what you think, whether the Department held the meeting or whether an action committee held the meeting, I think that’s what I’m hearing; because the concern is that the applicant may not have taken your concerns into consideration, and you want that opportunity to have an explanation and go over the plans. And that could be something that the Planning Commission could recommend as an amendment. GIFFIN: Thank you. Mrs. McInnis? Happy? Okay. I have another question of the Planning Director, as she presented. You suggested, I think, that there be – I can’t remember the term you used – but it would be a county initiated community group that would meet to hear from the members of the community whereas, if I understood this scenario correctly, the applicant would be initiating this meeting. Did I hear that correctly? LEITHEAD TODD: The bill, as it’s currently drafted, says that pre-application, before you submit, you’ve got to notify the neighbors and set up a meeting with them and tell them this is what I’m planning to do -. GIFFIN: The applicant. LEITHEAD TODD: The applicant – get feedback, they’ve got to provide proof to us that they’ve held the meeting. And the theory was that if they heard the concerns of the neighbors early on, that they could modify their application to take those concerns into consideration, and then they would submit the application. And at that point they are required, when they submit the application, to notify the surrounding property owners that they’ve submitted the application. We notify the various agencies, and ask them to comment on it. We also would notify the various action committees of the application, and they are free to comment. But the current bill does not provide for a public meeting after the application has been submitted, and I think that that’s what the public seems to be asking for. GIFFIN: Uh huh. So we are speaking of timing, and we are also speaking of who sponsors the meeting, you know, these action committees or the county or the applicant prior to submitting the application. Okay. And if we are hearing this correctly, we, the public today would be interested in what you are talking about, which is these action committees, once the application is submitted but no decision has been made, then there would be another opportunity for public input, correct? LEITHEAD TODD: I think that’s what I’m hearing that they want an opportunity after the application has been submitted to have a public meeting that they can come to, that they can hear from both the applicant, as well as the Department, and that they can ask questions about the application and provide additional input, because it’s, you know, their concerns may not have been addressed in the application. 12 EXHIBIT A GIFFIN: Thank you. Sir, are you Mac McInnis? You are. M. McINNIS: He’s much better look -. MADSON: He’s Mac. M. McINNIS: I’m Mac McInnis. GIFFIN: All right, thank you. M. McINNIS: Good morning -. GIFFIN: Good morning. M. McINNIS: Madam Chairman, Ms. Planning Director, gentlemen. I’m not going to waste time with what I planned to say, because BJ has said exactly what the citizens are concerned about, the transparency issue. The neighborhood meeting, BJ, we’ve had five meetings, and I think we know who you are talking about, what developer, and we’ve got nowhere with the gentleman. You are taking about different personality; this man holds his cards very close to his chest – some people are that way. Neighborhood meetings are a good idea to start with, but what the citizens would like is the opportunity to attend a meeting, a public meeting, whether at the Planning Commission or the County Council, after the P.U.D. application has been made, and have their questions answered. Just like my wife said, she is not a real estate expert, she is not a developer, she is not in a real estate business; these people are good citizens and have very little knowledge of how the process works. If they have a question, they’d like the ability to be able to stand up and raise their hand and say, BJ, could you please explain how they got this size lots? It’s very simple. Just have a public meeting. That’s all we are asking for. Thank you. Mahalo. GIFFIN: You are very welcome. Commissioners, any questions of the testifier? Hearing none, sir? MADSON: Yes. I’m Tom Madson, and I don’t have any testimony, but I have questions I don’t understand the answers to. GIFFIN: Okay, good. If my memory serves me correctly, both you and Mr. McInnis testified in December, correct? MADSON: That’s correct. GIFFIN: All right, thank you. Please go ahead with the statement of your questions. MADSON: Okay. I was wondering what would be required to make the Bill 291, as it was originally written, not in conflict with the county procedures. GIFFIN: Okay. Bobby Jean? LEITHEAD TODD: You would need to amend the County Charter. 13 EXHIBIT A MADSON: Who is “you?” LEITHEAD TODD: Well, the public, because what would need to occur is the County Council would need to propose an amendment to the County Charter, it would have to go on the ballot at the next election, and then the public would get to vote on changing the Charter. MADSON: Okay, that’s clear. And how would you do, how would you get it on the ballot? How would you start the procedure? LEITHEAD TODD: Typically, you either have to have the Council initiate it or you have to do a citizen’s petition. And I don’t know the requisite number of signatures that it would require to do that. MADSON: Okay, but we can make a proposal to the Council and ask them. LEITHEAD TODD: You can make a proposal to the Council. MADSON: And if they recommend it, it would go on the ballot. LEITHEAD TODD: Yeah. MADSON: Okay. LEITHEAD TODD: I think they need to have six, I’m not sure, I don’t want to speak to how many they have to, but -. MADSON: Okay, well, at least that explains the procedure. GIFFIN: Sir, No. 2? MADSON: My next question is, why do you have to go to the Land Use Commission, if you want to develop 15 or more acres? LEITHEAD TODD: You have to go to the state Land Use Commission, if you -. Hawai‘i has kind of a dual layer land use system. There is state land use classification, and so the land you sit on could be state land use classification Agriculture and county zoning Agriculture, or it could be state land use Urban, county zoning Ag or, if it’s in Urban, then it could be county zoning Ag, it could be county zoning Rural, or it could be county zoning Residential, it could be Industrial, it could be Commercial. If it’s state land use classification Agriculture and it’s more than 15 acres, the county cannot take it to an urban or residential use without the state Land Use Commission approving that, which is why you frequently see special use permits for 15 acres or less, or guys taking land and trying to cut it up into smaller parcel so they can get under the 15 acres. And the reason is is that basically it’s very expensive to go to the state and get land reclassified first, and then go to the county and get the rezoning at the county. It’s also lengthens or doubles the amount of time. And so for a lot of people who are looking to develop property -. This is not you’re going to buy a lot and build your house. This is somebody, I’m going to buy this land, I’m going to create a subdivision, I’m going to have, you know, 30 lots that I’m going to sell, I look at what it costs me to buy the land, I look at whether that’s cash out of pocket or am I borrowing money and paying 14 EXHIBIT A interest on it, I look at how long it’s going to take me to go from purchasing the land to getting the requisite zoning to getting construction done before I can actually sell the lots; so I look at what does it cost me for the period of time to get to the point that I can sell and actually see revenue come back in. So the reason a lot of guys try to avoid going through a two-step process – unless you’ve got a significantly large piece of land so that it kind of makes it worthwhile to go to the Land Use Commission, because you are going to rezone, you know, 500 acres, so maybe it makes more sense – but if you are only talking about smaller parcels, because it extends the time and extends the cost, a lot of property owners try to do segments that are just 15 acres or less, and that’s because it shortens the time, it shortens the cost, it means that they are spending less money on interest, if they borrowed it, it means that there is a shorter period in which they can hope to get the money back. And also sometimes they are trying to hit that window. The economy, if you are a developer, you want to get your lots ready for sale as the economy is going up. The worst thing is you’ve invested all your money, and just as you are getting ready to sell your lots, the economy tanks, the price of land tanks. And the money that you’ve put into developing it, into bringing water, into bringing the road infrastructure up to a dedicable standard or a modern standard, is very expensive. And so guys are always looking at this, because – for one example, where we have several guys working together now to try and get water, the water system is going to cost over 13 million dollars to get the water from up mauka down to where the development is going to occur – and so guys are figuring out, well, what’s that going to cost me and, you know, how do I pay for it, when do I get return. And that’s why guys try to avoid lengthening the process. But it’s the system that we have. It’s in state law. The county can’t change the state law; the State Legislature has control. But the intent of a lot of it was to preserve agricultural land from being rezoned and developed. It was supposed to preserve the best agricultural land, which typically was considered to be A and B soils, the soils that you can actually grow something in as opposed to -. On our island we have a lot of land that’s classified as Agricultural that’s ‘a‘ā and pāhoehoe, because we have recent lava flows. The difficulty for a lot of people is that – and I’m sorry for taking up all this time -. GIFFIN: No, no, this is great -. LEITHEAD TODD: Is that both Conservation and Agriculture became kind of buckets you throw other land into. Land that you didn’t think was ready for development, some of that got thrown into Conservation. It wasn’t in Conservation because it had flora or fauna or unique features that you needed to preserve; it was it’s not ready to be urbanized, so we are going to throw some of that in Conservation. In Ag, well, you know, it’s not ready to be developed, so even though you can’t grow anything on it, we are going to throw it into Agriculture. And the state law specifically says that they recognize that there is land that they’ve put into this classification that really isn’t good for agriculture. So they created a process where you can get a special use permit, so somebody can do something else with the land, because it’s not really good for growing stuff. But for this island, 95 percent of the land on this island is either classified as Conservation or Agriculture; it means that there is very little land that’s classified as Urban where you can actually have a right to build a house. And that’s because the state law also says that on agriculturally zoned land you can only have a farm dwelling. In theory you are not allowed to build a single family residence on land that is zoned, or classified, state land use Agriculture; you can only build it, if you have agricultural activity, unless your lot was created prior to 1976. 15 EXHIBIT A So there is all these nuances that guys are looking at. It makes it very complicated. And in many cases in Hawai‘i it makes it very expensive to develop land for residential use. So it’s, I guess it’s good for people who can afford it; it’s not good for people who can’t afford it. MADSON: Thank you. That explains why the developer would prefer to use a P.U.D. to develop the property. But my primary question is why does the state require a land use application, or permit or whatever, in the first place? Why don’t they eliminate that, if they don’t think there is a reason to have it? GIFFIN: Director? LEITHEAD TODD: I think that’s a question that I have asked in the past, and it is actually interesting in some cases that -. I mean, the state Land Use Commission is supposed to determine where is an appropriate area for urban development, where is agriculture appropriate, where is rural development appropriate; but again, I think, just like we sometimes complain on the county level, that the amount of staff they have, the amount of resources they have, the budget that they have, doesn’t enable them to really go out and look at land and decide, you know, what’s appropriate and whether a thing should move from one classification to the other. It is partially because the State Constitution got amended in 1978. And in 1978 the State Constitution was amended and it specifically states that we have to preserve important agricultural lands. And so state courts have said that some of the duty cannot be delegated from the state to the county; that it has to be done at the state level. So even if the Legislature wanted to, you know, create more of a flow to the county level, it becomes difficult. They could, if they wanted to, change the acreage. Instead of 15 acres, there have been attempts in the past to say that the counties can rezone and reclassify up to 50 acres or 30 acres as opposed to 15, and that the state should just reserve the larger parcels for itself ; that’s gotten no traction at the State Legislature. It hasn’t gone anywhere, so we are stuck with 15 acres for now and for the foreseeable future. A lot of this, the goal in 1978 was really trying to protect large scale agriculture. There was a lot of state land that was in leases to sugar, and the concern was that the state would take that land out of agricultural production, create homesteads where people could go and get pieces of land. And so part of the goal was to keep state land really in agricultural production and protect some of the industries at that time, which were pineapple and sugar. What’s occurred is agriculture has changed, and there really is more of a small scale agriculture; guys are doing stuff on five acres and three acres whereas before sugar was, I have, let’s see, Hāmākua Sugar was 29,000 acres and that was just one plantation, but you needed that acreage. And so I don’t think the law has kept up with the changing reality and the changing nature of agriculture. But that was the intent; it was to protect the large plantation style of agriculture and to keep large acreages, and it was to prevent the state from moving the land into agricultural reduction. The strange thing – and I’m so sorry -. GIFFIN: No, no, go. LEITHEAD TODD: The strange thing is the greatest pressure and the greatest movement to reclassify Ag land to Urban has not been in places like the neighbor islands; it’s been on O‘ahu where they have A and B soil. It’s the best land in the state and that’s what’s become, it’s flat, it’s got good soil, it’s easy to build houses on. So you have vast acreage on O‘ahu that is theoretically the best place to have agriculture occur, because it’s got the best soil; but because it’s flat, it’s also some of the easiest place to develop and build houses and put roads in, and that’s -. So I don’t know that we accomplished what we wanted to do, because there are other pressures that come into 16 EXHIBIT A play. That’s where, the greatest need for housing was on O‘ahu and it happened to have some of the best soil. The older islands tend to have the better soil. We have no A soil on this island. We have a little bit of B; most of it is located on Hawaiian Home Lands up in the Waimea and Kohala areas. When we have a B application, we look at it very closely. And we have recommended denials for some of the special use permits when it’s a B soil, because it’s soil that you can actually grow something in as opposed to -. You can grow anything anywhere, if it’s in a hot house and it’s aboveground; but the theory of protecting Ag land was trying to protect land that had the ability to actually plant stuff in the ground. And on this island we have instead unique crops like, coffee doesn’t require dirt, papaya actually likes rock; so it’s a very different way that we look at Ag land here. But it’s also much what’s growing is smaller agriculture; it’s not 29,000 acres anymore, it’s a five-acre coffee farm. And we have language where we protect the coffee lands, lands that are in the coffee belt; through the General Plan we look at very closely in terms of whether those get reclassified or rezoned. And it’s kind of learning where we are growing up, you know. I think planning was in its infancy where we are getting better at it; we are not perfect. But it’s also frustrating for a lot of people because, I think, most people want predictability, and rezoning and P.U.D.’s are not necessarily something that people can predict, and I think that that’s the frustration that members of the public have. GIFFIN: Sir? MADSON: So if I have 149 acres, I can split it up into ten 14.9-acre P.U.D.’s and totally circumvent whatever the reason was in 1978 for the state to impose the land use requirement, if you are going to develop more than, 15 or more acres. LEITHEAD TODD: Not exactly. And that’s, we look at who owns the property, and if you own all of those parcels and come in for successive things, we will reject your application and kick you up to the Land Use Commission. And we are doing that currently with a – we’ll see how well the litigation goes – we have a 140-acre parcel, it’s the same landowner, they are leasing subsections of the land, less than 15 acres, and guys are coming in for special use permits. And so we looked at that over a 20-year period. This is like the fourth one that came in. So we said we were going to reject it, even though they came in with just 10 acres. And we are saying, because we are looking and it’s a 140-acre parcel, it looks clear that there is an intent to do successive development, and so that the whole parcel should go up. And so we have that one. And we have another one where they did 15 acres and it started looking like their operations were larger, so we basically said that we are either going to shut you down or you need to go to the Land Use Commission and get all these things that you are doing permitted. So you would not be able to do that. You could divide it and sell them off to 20 different people and each of those 20 people could, theoretically, could -. MADSON: Yeah, my son and two other straw owners, or eight other straw owners. LEITHEAD TODD: Well, we look at the ownership, and if the ownership is not identical, then we process them. MADSON: So it’s a father, son and two other straw buyers, their, you know, the intent was to defeat the intent of the land use ruling in 1978. LEITHEAD TODD: And if it meets the parameters of what’s permissible, then it comes through; because we look at letter of the law, black letter, and if the black letter says that if the ownership for 17 EXHIBIT A us, you know, when we look at it, if the ownership is not 100 percent, then we process them separately, because they are separate owners, they are separate entities. MADSON: But if title changes to all those parcels all on the same day, and two of them happen to be a father and a son, you know their whole intent of this is to defeat the intent of the Land Use Commission. LEITHEAD TODD: I can’t look at what people’s intent is; I can look at what the paper is in front of me, and if the ownership is separate, then we process it. And -. MADSON: Okay, and you approve it. Is that automatic -? LEITHEAD TODD: And the zonings, the four that you are speaking about, we recommended denial of two, but not based on ownership; we recommended denial of two based on the community development plan. The four parcels that we are alluding to, we recommended denial. We recommended that the state land use classification should go to Urban, because given the area and with the fact that it was within the Kona Urban Area, we said that the classification should be Urban. But we recommended denial of the rezoning, because it was not consistent with the community development plan, on the bottom two 15-acre parcels. MADSON: Okay -. GIFFIN: Mr. Madson, does that conclude your questioning -? MADSON: I’m sorry it doesn’t. My next question has to do with any studies that are done and reviewed by the Planning Department or the Council about height limitations that affect visibility and the adequacy of the entrance and exit and traffic on – since we are talking about the four parcels – on Hualālai Road, because I know that in one intersection where I turn down the street to go down to my house, if the weeds are over five feet tall, it’s like cross yourself before you make a left turn. There’s no Stop signs. I mean it’s a shot in the dark, and people are coming down the road at 35 miles an hour, and it takes you, you know, 15 seconds to get across the lane, and you just pray there is no one coming. So if there is any high building that obstructs your visibility -. And I know (indecipherable) the proposed road is supposed to enter onto Hualālai Road, you know. I just want to know what kind of analysis has been done to analyze that. LEITHEAD TODD: Well, not that it’s germane to this specific bill, but when plans come in, they are reviewed by DPW for sight distance, and they are supposed to be looking at where the roads should go, and they typically have to -. If it’s a state highway, the state has to approve the intersection. If it’s a county highway, then the county Department of Public Works has to approve where the road is. And we try to maintain the weeds within our right-of-way. Unfortunately, we can’t do a lot for privately owned land, if the brush goes up. But, typically, the right-of-way should have enough of a design and we should be taking care of the weeds within the right-of-way so that you have some visibility. And if there is a problem within the county right-of-way or visibility, I would suggest reporting it so we can try and address it, if you have a concern specifically -. MADSON: You mean after the fact? After a house is built that obstructs visibility? LEITHEAD TODD: Well, houses have setbacks, you know, and -. 18 EXHIBIT A MADSON: Yeah, but they are so small. They are ten feet. With variances that have been granted, in some places five feet. LEITHEAD TODD: Yeah, but they are back of the property line. So if the intersection is there, the intersection, you should be able to see clear from the intersection and the houses shouldn’t be blocking. But if that’s a concern, that needs to be brought up with DPW. MADSON: And who would you bring that up with? LEITHEAD TODD: Department of Public Works. MADSON: Publics Works, okay. Uh -. GIFFIN: Mr. Madson, I need to ask you if you have further questions, No. 1, and, No. 2, if the questions are germane to this agenda item. If they are not germane to this agenda item, I suggest that maybe you arrange an appointment with the Department to discuss those other questions that you may have. But if you have other questions that pertain -. LEITHEAD TODD: I’m here every Tuesday. MADSON: Okay, thank you. LEITHEAD TODD: And more than willing to meet with you and go over your concerns and see if we can address them -. MADSON: And you are extremely knowledgeable and -. GIFFIN: She is. MADSON: I appreciate that. Okay, my last question was not in direct, at what’s on the agenda. GIFFIN: Okay. MADSON: So I will make an appointment. GIFFIN: Thank you. MADSON: Thank you very much for your time. GIFFIN: Thank you. And I appreciate you coming, and I appreciate the lesson on Planning 101 from the Director. LEITHEAD TODD: I’m sorry, I couldn’t help myself. GIFFIN: No, that was great. MADSON: Thank you. 19 EXHIBIT A GIFFIN: So thank you very much for coming. Please go back to your seats. Members of the Commission, any questions of the Director? And I did have -. Daryn, maybe we need to speak to this proposal that I think I heard Mrs. McInnis allude to regarding the sequence of the meetings, and I think that the Director also acknowledged that that was something well taken. Any questions? Director. LEITHEAD TODD: I was going to say let’s take a look at Page 4, Section 25-6-6, “Actions by director on P.U.D. applications.” And so I’m looking at adding a subsection (1) to (a), and the subsection would say that within sixty days of receiving, of acceptance of a P.U.D. application, the director shall hold a public meeting either, or have a meeting through the action committee – so one or the other, not a director meeting and an action committee, but if there is a public meeting through the action committee, then that would take care of that. If there is no action committee like, let’s say this is Ka‘ū, then the director would hold a public meeting. And we would do that within sixty days. So there would be an opportunity by then to have had comments from the departments, public comments come in on the application. There would also have been an opportunity for the action committee to have seen the application and potentially decide whether they wanted to hear it, so that we would hold some kind of a public meeting, notice it publicly. And I don’t have the exact language, but that’s where I’m looking at putting it is under (a) so that -. Because, since we are expanding it from sixty to ninety days in this proposal, say that within sixty days you have to hold the public meeting, so then this proposal would then have a community meeting before the application is submitted, and it would have a community public meeting where people could come after the application is submitted. But that would also still reserve the opportunity to appeal any decision that was made to the Board of Appeals. GIFFIN: To the Board of Appeals, right. Okay, I got it. Commissioners, any questions of the Director? Members of the public, did I enable all of you to have the opportunity to testify today? Great. BEAUDET: I have one -. GIFFIN: I’m sorry. Brandi. BEAUDET: I’m looking at Section 25-6-11, Paragraph (a), and my question was as to why 75 feet and how does that account to typical stories or levels within a building. LEITHEAD TODD: That was existing language in this section; this is not new language. And I think it’s partially because you are looking at different districts, including Agricultural districts, and different types of things. But it is a concern. BEAUDET: Wouldn’t it be better just to follow the zoning height requirements of the area rather than having an exemption to go higher than what is currently zoned for? LEITHEAD TODD: I think you can currently get a variance for height limit that’s outside of the P.U.D., you know, for specific conditions like, let’s say there’s flooding issues or something and so you need to elevate -. But it does seem, I mean, that would make me nervous, if somebody had 75 feet next door to me. And I’m only allowed to be 15 feet in my subdivision. Let me -. May we take a five-minute recess and have staff pull up some of the other stuff? 20 EXHIBIT A GIFFIN: Sure, sure. We are in recess to enable our staff to give us some background information on this issue. Thank you. RECESSED The Chair called a recess at 11:07 a.m. RECONVENED The meeting reconvened at 11:26 a.m. GIFFIN: I’d like to call the Hawai‘i County Leeward Planning Commission meeting back to order. I think, if I understood our Director’s body language, that she has worked out some language to add to the existing proposal that she has for the agenda item. LEITHEAD TODD: On Page 4, Section 25-6-6, “Actions by -.” Oh, sorry, I forgot, I keep thinking my voice is loud enough, but it has to go into the tape. Section 25-6-6, “Actions by director on P.U.D. applications,” a new subsection under (a) would be, “(1) Within sixty days after acceptance of an application or modification, the director or applicable community development plan action committee shall hold a public meeting on the application.” So that’s on Page 4. For the other one on height limits on Section 25-6-11, “Height exceptions authorized,” under (a), we would delete everything after the semicolon that says, “provided, that the maximum height of the building shall not exceed seventy-five feet,” and instead the section would read, “A building approved under a P.U.D. approval may not exceed the height limit specified under the zoning district of the property and the height limits under section 25-4-22, unless there are special or unique circumstances warranting an exception.” GIFFIN: Any discussion on the additions and changes that the Director has recommended? Hearing none -. UNIDENTIFIED PUBLIC MEMBER: Uh -. GIFFIN: I’m sorry? UNIDENTIFIED PUBLIC MEMBER: I have a question, I’m sorry. I did not understand. You are going to have a meeting with an action committee -. ARAI: Sir, if you are going to speak, please go to the table. GIFFIN: Could you identify yourself again, too, for the tape. M. McINNIS: I’m Mac McInnis. I’m sorry, I did not understand what BJ said. It will be before, the meeting will be before an action committee, and if an action committee doesn’t have jurisdiction, it’ll be before whom? LEITHEAD TODD: Me. M. McINNIS: You? LEITHEAD TODD: Yeah. 21 EXHIBIT A M. McINNIS: The planning director. LEITHEAD TODD: Because we, I’m saying either-or, because I’m going to give the action committee the option of whether they want to hold the hearing; if they do, then we would do it at a regularly scheduled action committee hearing. I have two areas that only have steering committees; so if it’s Hāmākua or Ka‘ū, I would have to hold the hearing because there is no action committee to go to. But because this isn’t something that is specifically, under the current code, assigned to an action committee, you may have an action committee that says, hey, we are not really interested in holding the hearing because we have other things that we need to do. But I’m going to give them the option; if they want to hold the hearing, we are going to do it at the action committee; if they don’t want to hold the hearing, then I’m going to hold the hearing. But it requires that a public hearing be held on the application. M. McINNIS: Okay, thank you. GIFFIN: You’re welcome. Once again, Members of the Commission, any questions of the Planning Director? Hearing none, do I hear a motion? And it might be best for us to take a look at, first of all, Agenda Item No. 1 on your agenda. Also, take a look at Page 3 of the December background report; the bottom paragraph has recommendation, and what is germane for us today is the last sentence, “The Planning Director requests ….” Okay? And I’m happy to read it. You want me to read it and just ask for the approval, okay. So what we are voting on this morning is the Planning Director initiated 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.). I’m going to ask – and if this is not what you are in favor of, please correct me – that the Planning Director, that we forward a favorable recommendation for the Director’s proposed bill to be made to the County Council, with – Daryn, are they amendments, are they changes, are they conditions, what are they? ARAI: I think maybe the best way to frame it is to recommend favorable consideration of the Director’s bill as proposed with additional amendments as she offered to Sections, you know, 25-6- 6 and 25-6-11. GIFFIN: Yeah, I will. All right. So, with the favorable recommendation to the County Council, with the addition and changes, as stated by the Director, of Section 25-6-6 (a) and a new section (1) and also 25-6-11 with the change in verbiage as expressed by the Director. Do I hear a motion? BEAUDET: I move to support the Planning Director’s recommendation. GIFFIN: Do I hear a second? HICKCOX: Second. GIFFIN: It’s been moved and seconded, it’s been moved by Commissioner Beaudet and seconded by Commissioner Hickcox that we approve the Planning Director’s request, that we send a favorable recommendation to the County Council, with the changes that were suggested by the Planning Director. All those in – no, no, no – roll call. ARAI: Okay, let’s make this legal. Commissioner Beaudet? 22 EXHIBIT A BEAUDET: Aye. ARAI: Commissioner Hickcox? HICKCOX: Aye. ARAI: Commissioner Whittemore? WHITTEMORE: Aye. ARAI: And Madam Chairwoman? GIFFIN: Aye. ARAI: Madam Chairwoman, motion carries with four aye votes. GIFFIN: Thank you. The discussion ended at 11:35 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 23 EXHIBIT A