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HomeMy WebLinkAbout2014-12-18 Leeward Exh A (Amend Zoning Code Bill No. 281) LEEWARD PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT DECEMBER 18, 2014 COUNTY COUNCIL INITIATED AMENDMENT TO A regularly advertised hearing on the CHAPTER 25 OF THE HAWAI‘I COUNTY CODE, RELATING TO PLANNED UNIT DEVELOPMENTS was called to order at 09:32 a.m. in the West Hawai‘i Civic Center, Community Center, Building G, 74-5044 Ane Keohokālole Highway, Kailua-Kona, Hawai‘i, with Chair Brandi Beaudet presiding. COMMISSIONERS PRESENT: Brandi Beaudet, Thomas Hickcox, Collin Kaholo, Barbara Nobriga, Keith Unger and Thomas Whittemore ALSO PRESENT: Duane Kanuha (Planning Director), Danny Patel (Deputy Corporation Counsel), Daryn Arai (Planning Program Manager), Jeff Darrow (Planner), Maija Jackson (Planner) and Noriko Sauer (Commission Secretary) And seven people from the public in attendance. INITIATOR: COUNTY COUNCIL (Bill No. 281) County Council Bill No. 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawai‛i County Code 1983 (2005 Edition, as amended) relating to Planned Unit Development (P.U.D.). The purpose of these proposed amendments is to require review and approval of a P.U.D. by that Planning Commission that holds jurisdiction over that area containing the property for which the application is sought. BEAUDET: First agenda item for this morning, Initiator: County Council, Bill No. 281, County Council Bill 281 amending Chapter 25, Article 6, Division 1 and Article 5 of the Hawaii County Code 1983, relating to Planned Unit Development. Daryn? ARAI: Thank you, Mr. Chairman. Good morning, Commissioners. Good morning, everyone. Thank you for attending, and happy holidays. If I may direct your attention to the presentation screen. What you have before you is County Council initiated Bill No. 281, an amendment to Chapter 25 of the Zoning Code relating to Planned Unit Developments. The purpose of Bill 281 is to seek an amendment to the portion of the Zoning Code relating to Planned Unit Developments, or as we call them P.U.D.s. More specifically, the purpose of the proposed amendments is to require review and approval of a P.U.D. by the Planning Commission that holds jurisdiction over that area containing the property for which the application is being sought. The reason for this bill was based on a finding by the County Council that the P.U.D., as a form of development permit, should be subject to a review process that allows opportunities for public involvement with procedural guidelines for approval implemented as part of a decision-making process. 1 EXHIBIT A I apologize for the small lettering, but if you could refer to Page 3 of your Background and Recommendation report, this matrix is also located at the bottom half of Page 3. And as you can see, the matrix attempts to lay out the components of the P.U.D. process and what the current Zoning Code provides for, and what changes will occur, should Bill No. 281 be adopted into law. So if I could briefly go through them. As it pertains to approving authority, the current Zoning Code, the current authority under the current Zoning Code is the Director; Bill 281 will change that authority to the Planning Commission. Minimum land area of two acres in order to apply for a P.U.D. will not change between the two, current bill and the proposed bill. Public notification: Current Zoning Code requires ten-day notice of the Director’s decision; Bill 281 will require ten-day notice of a Planning Commission hearing to be conducted on the application. Content requirements for P.U.D., no changes from current. Public hearing: The current Zoning Code provides that the Director as the approving authority with no public hearing; that will change obviously, should it come to the Planning Commission. Contested case proceedings: None afforded at the Planning Director level; however, as you are aware, and similar to other permits that you hear, a person could file for intervention in a contested case proceeding, should Bill 281 be adopted. Criteria for approval of a P.U.D.: Bill 281 would require compliance with the applicable Community Development Plan in place for the particular district. Processing time period: Under the current Code it requires the Director to act within 60 days; under Bill 281 we will have to conduct a hearing before the Planning Commission within 90 days, with a decision by the Commission 60 days after the close of the hearing on the particular application. Failure to process timely: Under the current Code, if the Director fails to process in a timely manner, the application is deemed denied; however, under Bill 281, as provided for under State Law, if the Commission fails to act within the prescribed time period, it will be deemed approved unless objections to the Planned Unit Development permit is received by the Commission. Option for partial P.U.D. approval: Yes, under the current Code; and that option will no longer be provided under, should it go before the Planning Commission. Time extension or amendments to conditions of approval: That authority currently lies with the Director; again, that will change to the Planning Commission under Bill 281. And appeal of a P.U.D. decision: Current appeals of the Director’s decision goes to the Board of Appeals; that will change since all actions of the Planning Commission is appealable to the Third Circuit Court. If I can bring your attention back to the presentation screen. Bill 281 does not introduce a significant change to the information submittals required with a P.U.D. application or to the standards or criteria for approval of a P.U.D. other than substantially conforming to any applicable community development plan. And I made reference to that earlier. We do have reservations regarding Bill 281 in that the Zoning Code specifies that the purpose of a P.U.D. is to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building height, and lot sizes in planned building groups, while still insuring that the intent of the chapter is observed. A P.U.D. alone cannot introduce a use that is not permitted within a particular zoning district nor shall its approval compromise the intent and purpose of the Zoning Code. A P.U.D. exists to encourage comprehensive site planning, when the other option is to design a project in compliance with the standard requirements of both the Zoning and Subdivision Codes. There is concern that transferring approval authority for P.U.D.s from the Planning Director onto the Planning Commission may complicate a process that does have its favorable attributes, such as encouraging developments that seek a better fit into the surrounding environment. Zoning controls overall land use. P.U.D.s then manage those permitted land uses to 2 EXHIBIT A best compliment the area in which a project is situated. There is a perception that a P.U.D. is the master land use or development permit, and that is not the case. If a P.U.D. is denied, the landowner is still able to develop the property in accordance with the standard requirements of the Zoning and Subdivision Codes. A denial of a P.U.D. does not make a project necessarily go away since it is the zoning of an area that dictates what gets developed and how the land is utilized. So for the reasons I stated, the Director recommends that the Planning Commission send a favorable recommendation, with reservations, to the County Council regarding Bill 281, relating to Planned Unit Development permits. Commissioners, do you have any questions? KANUHA: Mr. Chairman? BEAUDET: Yes, sir. KANUHA: I’d just like to add a little historical perspective. You know, long, long ago in a land far away, the Planning Commission used to issue all variances and P.U.D.s at one time in the entitlement process. And I believe there was a Charter amendment in 19 – 1991? – yeah, I think someplace in 1991, which transferred all variances back to the Planning Department; it was considered more of a ministerial activity, so it was transferred back to the Planning Department. And that’s why P.U.D.s also got transferred back to the Planning Department. So the perspective there is that it’s not a procedure that the Commission has never participated in. And then I think over time we’ve come to the conclusion that there needs to be a lot more transparency in the approval of P.U.D.s; the current process doesn’t provide to that. And I think that has been some of the concerns of the County Council, which is why they initiated this bill, and that’s why we are moving it forward. I think the other comment I’d like to make is that the recommendation says that we are recommending approval, with reservations, and, actually, it’s more qualifications in my mind than reservations. And I did, it’s, we just wanted to point out certain characteristics about the P.U.D. that if the applicant did not apply for P.U.D., you know, there still could be some activity going on without it, you know, it’s just that it wouldn’t, you wouldn’t have the flexibility of creating a more, you know, sustainable or better looking development. So, you know, it’s more qualified recommendation rather than recommendation with reservations. Thank you. BEAUDET: Daryn, I have one question. And this is relating to the appeal process. And if you could get some explanation as to the process in appeal why the appeal would go to the Third Circuit Court, and then followed by who accommodates the cost for that. ARAI: The Board of Appeals normally hears appeals of decisions of the Planning Director and Public Works. And so that’s basically the scope of their authorities, which is one of the main distinction of why, as a commission, your actions are not, wouldn’t be the proper venue, BOA would not be the proper venue just because the scope of their review is typically to the Planning Director and Public Works decisions. Is that clear enough? I’m sorry. BEAUDET: Yes, but one, so if, would the appellant be responsible for their own cost in pursuit of the appeal? ARAI: Personally, I’m not familiar with that part. 3 EXHIBIT A PATEL: Excuse me, Chair, maybe I can provide some light. To answer your question, as far as the appellant, just to clarify, are you referencing something comes before the Commission, the Commission denies the P.U.D., the appellant, meaning the applicant, appeals to the Third Circuit Court? BEAUDET: Correct. PATEL: In that instant, yes, normally the appellant when you are appealing, they would be responsible for their own cost. BEAUDET: I just wanted to clarify that. KANUHA: And that, again, Mr. Chairman, that also applies to approval, yeah; if the Commission approves a P.U.D., and, you know, there is a party that’s involved in the process that disagrees with the decision, they too can appeal as well. BEAUDET: Thank you. Go ahead. UNGER: Daryn, And the current Zoning, partial approval is allowed in the P.U.D., and then in this new bill it’s not. What is the reasoning behind that? ARAI: I’m not sure of the exact reasoning behind it. We just noticed that it was not a component within this bill that was transmitted down by the County Council. So I’m not exactly sure why the particular component was not included in this draft bill. HICKCOX: Mr. Chair? I think that maybe perhaps, after going through some of the reading on this, that what’s being sought after along with all of these other things is more stringent compliance to the CDP, right? Correct? That seems to be the direction this is headed for, if I’m not mistaken. BEAUDET: I would agree, but then, again, you know, let’s be aware that the zoning conditions as they are, as they currently dictates the density of the proposed development, right, which is in accordance with the CDP to begin with, or should be, right, unless you are asking for rezoning. But if all stays current, densities don’t change, rather, if the property were to be developed under the current zoning or under a P.U.D. application. Correct, right? ARAI: Yes. And maybe to further clarify the Community Development Plans, previously Community Development Plans were frequently adopted by a resolution, which is just an expression of policy, you know, policy direction. However, more recently, like these North and South Kohala CDPs, the Kona CDP, those have been adopted by ordinance, so there have been some questions about, by adoption by ordinance, it’s then law, and that has been, I believe, an appealable point, or at least made part of an appeal, past appeal. So I think to kind of avoid that type of potential, it’s best to just incorporate it within the proposed code amendments; that way, it’s clearly articulated and expected as part of the review process. BEAUDET: I think one of the other main primary focuses here with Bill 281 is creating, or increasing, transparency for those concerned in our communities, or in surrounding communities of the area. And I can appreciate that. It also gives, provides community members and neighbors the 4 EXHIBIT A opportunity to provide their opinions or their thoughts on the application or what’s being developed in and around their community. So the way I read it, you know, the focus is there as well. Any more questions of staff, Commissioners? Thank you, Daryn. We have three individuals in the audience who have signed up for testimony. I’d like to call you up: Joel Cooperson, Joel Cohen and Mark Van Pernis. Before we begin, I’d like to swear you in. Do you swear – please raise your right hands – do you swear or affirm to tell the truth on this matter now before the Planning Commission? TESTIFIERS: Yes. I do. BEAUDET: Starting at the far right, if you could please just state your name and your place of residence, and if you could speak into the mike. COHEN: My name is Joel Cohen. I’m a resident of Waimea. BEAUDET: Thank you. Sir? VAN PERNIS: I’m Mark Van Pernis. I live in Makalei Estates in Kona. BEAUDET: Thank you. COOPERSON: My name is Joel Cooperson, and I live at Heights at Hualālai on Hualālai Road. BEAUDET: We are ready for your testimony. If we could start with you, sir. COHEN: Thank you very much for the opportunity to speak before the Commission. BEAUDET: I’m sorry, could you restate your name just for the record? COHEN: Joel Cohen, C-O-H-E-N, middle initial J, speaking as an individual – I’ll emphasize that. I hope everybody had received my written testimony, it’s pretty general. I think what it really comes down to is the words, “public policy,” “long-term thinking,” “strategic planning,” that we have a consistent process that is open to the public, and has opportunities not just within 100 yards of their, or 100 feet or 500 feet, from their property but anybody that’s affected, that the County when there is, not necessarily this two-acre, you know, proposal at Mauna Lani or whatever that most likely decisions to be made very quickly on that, but when we are dealing with large parcels that affect a lot of people and affect water supply and affect a host of things, including things that are not even involved with the County directly, like schools and so forth, but do affect the community on the long haul, that we have to have as open a process as possible. I think by having an open process it basically benefits both the people in the community and also the county as a whole voting legal issues and so forth and so on. I always like to use the expression, “figure it out,” and I think that’s what’s really important that we all work together. I think we all have the same objectives; we live on a beautiful island that we want to protect and we want to take care of, and we don’t want to abuse, we don’t want people just doing whatever they want to do. However, your people can develop their own property and they can develop it. If they do it in an aloha manner, this is, we are going to grow, but let’s grow and make sure that we have certain standards and so forth. 5 EXHIBIT A I wanted to just briefly address the issue of Community Development Plans and the conflicts that had become a political issue, I say, unfortunately. A lot of time went in to these development, these plans, a cross section of community input. I am familiar with one that I think is very well balanced, isn’t anything radical in there. My feeling is if there is issues between the General Plan and the CDP, they should really work hand in hand on the long haul, and we need to figure it out so that it occurs that way. There should not be a conflict, as far as I’m concerned. We all have the same objectives to protect the land and do what’s right for the county. And I’m hopeful that out of this discussion that there will be more discussion in the area. And the bottom line is public input, making our, can’t do anything about the federal government, difficult with the state government, hopefully locally we can figure it out so we can all work together on the same plane and find solutions, positive solutions that everybody can live with and where the county can grow but grow in a pono manner. Mahalo. BEAUDET: Thank you for your comments. Appreciate that. Sir, if you could state your name. VAN PERNIS: I’m Mark Van Pernis. I’ve been an attorney in Kona for over 30 years. For clients and as a member of a hui I’ve developed a lot of land. The P.U.D. process is a huge loophole, a goldmine exploited by land planners and attorneys. It’s a way to get smaller lots than what the zoning allows. For instance, in one proposed project before the County they proposed 7,000-square foot lots in an area of 15 and 20,000-square foot lots. That depreciates the value of all the adjoining property. This is a huge loophole, which this bill closes, and I compliment the County Council on coming up with it. The P.U.D. process saves developers a huge amount of money in infrastructure costs, and that, of course, is at the expense of the county. I’ll give you one example where I was involved in litigation in South Kona; the covenants of the subdivision allowed only for five-acre lots, the developer took one of the lots, one large remnant lot, and proposed a three-acre development, huge development, with the Conservation classified land as a remnant lot. The County approved it, the County Planning Director at the time approved that, and there was a huge amount of financial agony by the developer and there was litigation by the neighbors and the development did not take place. This, without the, if they, they had no opportunity to publicly testify about their ranches about the covenants; it was the sole discretions of Planning Director that caused all this problem. You, I’m sure, are familiar with other litigation where the P.U.D. process has been stopped. This allows a developer to present lots not in conformance with the zoning; that’s what people call Planned Unit -. BEAUDET: Excuse me, Mr. Pernis, if I could interject. Before us is the decision to support or not support Bill 281. I think we are all pretty much aware of the P.U.D. process and where it currently is and where it may go. So I would just ask that you keep your comments in support of or not in support of what is the decision today. VAN PERNIS: Well, I am in support of the bill, and ask for it be recommended and passed by the Planning Commission, without reservations. The reality of the P.U.D. is that it’s a rezoning and it’s a subdivision, and, therefore, there should be public input. And that is not allowed under the current system. This bill resolves that issue, and presents subdivision to you folks for consideration. I would close by saying I emphasize that you folks represent the County of Hawai‘i and its citizens, not developers. Therefore, I would ask you for an unconditional support of this bill. Thank you. BEAUDET: Thank you, Mr. Pernis. 6 EXHIBIT A COOPERSON: My name is Joel Cooperson. I’ve been a resident of Kona for over 45 years. Thirty-one and a half of those I taught public schools, Hōlualoa, Kealakehe Intermediate. I don’t want to beat a dead horse – sorry, Mrs. Nobriga – but I think everything that I was going to say was covered; Mr. Kanuha mentioning transparency is extremely important, and Mr. Cohen discussing working together for the betterment of the community is pretty much what I was going to say. So that pretty much covers what I was going to discuss. Mahalo. BEAUDET: Thank you, Mr. Cooperson. Commissioners, any questions or comments for the testifiers? With that, I would like to ask the Commission to move to close this portion of the public hearing. HICKCOX: So move. BEAUDET: Second? NOBRIGA: Second. BEAUDET: All those in favor? ALL COMMISSIONERS: Aye. BEAUDET: Thank you. This portion of the public testimony is now closed. Thank you for your comments. If there are no further comments or discussion on the matter with the commissioners, I would like to ask for a motion for action. HICKCOX: Mr. Chair? BEAUDET: Yes. HICKCOX: I recommend that the Leeward Planning Commission send a favorable recommendation, with reservations, to the County Council regarding Bill 281 relating to the Planned Unit Development, P.U.D., permit. WHITTEMORE: Second. BEAUDET: Thank you. It has been moved by Commissioner Hickcox for a favorable recommendation, with reservations, and seconded by Commissioner Whittemore. Discussion before vote? PATEL: Just to clarify, is that with reservations pursuant to the Planning Director’s recommendation? With any additional reservations or? HICKCOX: With the reservations as stated by the Planning Director. BEAUDET: Okay, thank you. Staff? 7 EXHIBIT A ARAI: Could I, when the Director was explaining his position, he made a distinction that it was more of a qualification than a reservation. So I just wanted to make sure how, if it’s not that big of a difference, maybe -. BEAUDET: Would you restate that to say, “with qualifications?” Or we need to identify that, if we made the word change? ARAI: If the motion is based on the Director’s recommendations, then it will probably be with the clarification that it’s a qualification. The only -. One moment. (Secretary’s note: Mr. Arai had a brief dialogue with the Planning Director off the record.) So the commissioner’s motion and the intent is to basically go with the Director’s recommendations and the qualifications that is contained within his report to you, then I would state specifically as “with qualifications.” HICKCOX: Mr. Chair? I know I have a motion. May I amend my motion prior to Commission voting? I withdraw my, excuse me, withdraw my initial motion, and resubmit to you that the Leeward Planning Commission send a favorable recommendation, with reservations dealing specifically with qualifications, to the County Council regarding Bill No. 281 relating to Planned Unit Development, P.U.D., permits. WHITTEMORE: I second that. I’ll also withdraw my initial second on the first motion. BEAUDET: Okay. So for the record, let me try to summarize, the initial motion as provided by Commissioner Hickcox has been withdrawn, and the second was withdrawn as well by Commissioner Whittemore. Restated motion has been made by Commissioner Hickcox and seconded by Commissioner Whittemore. Before we go on to vote, is there any further discussion by Commissioners? Daryn, would you like to take the roll call? ARAI: Sure, thank you very much. Commissioner Hickcox? HICKCOX: Aye. ARAI: Commissioner Whittemore? WHITTEMORE: Aye. ARAI: Commissioner Kaholo? KAHOLO: Aye. ARAI: Commissioner Nobriga? NOBRIGA: Aye. ARAI: Commissioner Unger? UNGER: Aye. ARAI: And Mr. Chairman? 8 EXHIBIT A BEAUDET: Aye. ARAI: Mr. Chairman, your motion carries with six aye votes. BEAUDET: Thank you. The discussion ended at 10:05 a.m. Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission 9 EXHIBIT A