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HomeMy WebLinkAbout2016-04-27 KCDP Minutes Final 1 2 3 Kona Community Development Plan Action Committee 4 County of Hawai‘i 5 Minutes 6 Meeting Date: April 27, 2016 7 Call to Order 10:00 a.m. nd 8 Place: Kona Planning Conference Room. Bldg. E, 2 Floor 9 West Hawai’i Civic Center 10 74-5044 Ane Keohokalole Highway 11 Kailua-Kona, Hawai‘i 96740 12 Roll Call: 13 1. Members Present: George (Keoki) Schattauer Jr., Kari Kimura, Barbara DeFranco, 14 Hiram Rivera, Greg Ogin, Curtis Tyler III, Charles Young and Douglas Payne 15 2. Planning Department: Duane Kanuha, Director, Bennett Mark, and Terry Dunlap 16 3. Corporation Counsel: Bill Brilhante 17 3. Public in attendance: Jeff Zimpfer, Janice Palma-Glennie, Karen Eoff, 18 Peter Young, Bobby Command, David & Laurie Elbogen, 19 20 The meeting was called to order by the chair, Hiram Rivera, (Hiram) and introductions of AC members 21 followed. 22 Hiram acknowledged the Planning Director, Duane Kanuha, Bill Brilhante, Corporation Counsel and 23 Bobby Command, Deputy Managing Director. 24 Hiram noted the procedure for the meeting. 25 STATEMENTS FROM THE PUBLIC REGARDING ITEMS ON AGENDA 26 1. Janice Palma-Glennie – comments on decisions on the CDP and the impact of Judge Ibara’s 27 ruling. Looking forward for clarification on the legality of the KCDP. 28 2. A letter from Mike Matsukawa was submitted to the Action Committee concerning the Legal 29 Opinion Letter issued by the Planning Director. 30 ADMINISTRATIVE MATTERS 31 1. Minutes were unanimously approved for March 30, 2016. 32 2. No addendum or supplemental agenda 33 3. No communications other than draft minutes. 34 35 UNFINISHED BUSINESS: Discussion on the Legal opinion issued by the Director on the KCDP 36 Hiram stated that we will follow the questions on the minutes from March 30, 2016. 37 The dilemma is the KCDP and its relationship to the Missler case and the legal opinion. 38 The Director indicated that he gave the AC his opinion rather than a legal opinion of the Plan. As to 39 responding to the Mike Matsukawa letters, the Director will respond if the letter is forwarded to him. 40 Action Committee discussed the Matsukawa letters. Kari Kimura (Kari) felt the Matsukawa was a bit 41 much as it asked the Action Committee (AC) to stand down. 42 43 Greg Ogin (Greg) felt the letter was too legal for the AC to respond, so we should ask the Director for 44 some insight on the letter before the AC could comment. 45 46 Barbara DeFranco (Barbara) stated that we need clarification on the Matsukawa letters and this should not 47 be the point of the meeting. 48 49 Charles Young (Charles) wants to send the minutes to the Director as soon as the minutes are prepared 50 and not to wait for the approved minutes. 51 52 Hiram stated that receipt of the Matsukawa letters have good timing as the AC cannot move forward and 53 comply to the CDP if the CDP is not the law. If the CDP does not work, it does not function. So, how 54 does the AC move forward and make it effective? The AC need simplicity and clarity so we can apply 55 the principles and objectives of the CDP to move forward. 56 57 Director indicated that the AC asked him to clarify whether the Ordinance for the CDP also amended the 58 existing County Codes. The AC did not ask if the Ordinance adopting the CDP was legal. Matsukawa 59 seems to be questioning whether or not this interpretation addresses whether the CDP is legal. The 60 Director’s letter does not address the legality of the CDP. The letter recognizes that the CDP was adopted 61 by ordinance and that certain provisions of the CDP changed certain existing codes within the County 62 Codes. 63 Those changes were never accomplished to modify some specific sections of the existing codes. The 64 CDP says that these changes were automatically made with the adoption of the CDP. Changes to the 65 County Code must be specifically done and cannot be accomplished by stating in the CDP that these 66 changes were made by the adoption of the CDP. 67 The legality of the CDP is not really changed, it is still adopted by Ordinance, however, a statement exists 68 in the CDP in the Policy Level says that where the term SHALL is used, it is legally binding on County 69 Agencies. This cannot be implemented without many changes to the County Codes. 70 All of the proposed changes in the CDP did not change the County Codes. These sections in the CDP are 71 there for consideration when reviewing a proposal. On table 5-3, a listing of all changes, made by plan, 72 are listed, with indications of how it was enacted by plan. Sometimes it addresses the change, but does 73 not list the code it amended. These changes to the Code would apply to the entire Island of Hawaii and 74 not just Kailua-Kona. Sometimes only a portion of a code is mentioned to be changed. It also states that 2 75 these changes supplement the code, which gives direction, but does not change the codes. These are 76 inconsistencies, so the suggestions are part of the plan and are operational considerations. This creates 77 opportunities for the AC to participate in the interpretations of the CDP. This is the intent of the letter. 78 Curtis Tyler III (Curtis) asked whether the Director was is going to answer the points listed in the last 79 meeting minutes. Hiram said no. 80 Doug Payne (Doug) mentioned the draft letter prepared by Hiram should be sent to the Director as well as 81 draft minutes. 82 Curtis commented on the Matsukawa letter and the possibility of its exposure to the County Council. 83 Also expressed were concerns about the legal exposure of AC members. 84 85 Bill Brilhante (Bill) commented that there is no legal consequences for members of the AC as they are 86 advisory. 87 The KCDP was adopted through Ordinance and became the vehicle that created the existence of the AC. 88 The specific purpose of the AC is to provide advice to the Planning Director for concerns and issues of 89 the community that are pursuant to the CDP. The Director will deliberate over the recommendations. 90 The Missler case has facts and circumstances that are specific as to what took place under the Missler 91 case PUD application. The facts in front of the intermediate Court of Appeals were specific, as they 92 related to Missler, and if these were properly applied. 93 94 Curtis noted that changes proposed to the AC from the Planning Department for necessary changes to 95 Chapter 25 and Chapter 23 were not recommended for approval by the AC. Discussion about proper 96 process in changing existing codes were again discussed. Is this the kind of action needed to move 97 forward? 98 99 Bill indicated that specific action from the AC would need to be submitted to the Director with all the 100 justification attached for these types of changes. Then, if approved by Director, the revision would be 101 sent to the Planning Commission and ultimately to the County Council for review and possible approval 102 and then finally to the Mayor for final review. Only the County Council can amend the County Codes. 103 104 Director said that was the process. Examples such as TOD were adopted by ordinance, but the CDP has 105 struggled with implementing this component. AC feels constrained by these initiatives which everyone 106 thought were approved by the ordinance, however, the ordinance did not change the code. Therefore, the 107 AC can review the CDP Ordinance and make recommendations to the Director for revisions if the AC 108 does not agree that the Ordinance adequately addresses the actual situation(s). The AC can also add 109 recommendations for additional regulations. 3 110 111 Bill mentioned that many times applicants request uses not permitted under the current code and are 112 requesting, perhaps a special permit. This is where the Director has staff check the CDP to determine if 113 the request is consistent with the CDP where the property is located. The proposed use must comply and 114 if not, the application may not be recommended for approval. 115 116 Director does not want the AC to focus on individual projects, rather focus on the larger picture. The 117 Director will send projects to the AC if the Director has determined that Planning needs the 118 recommendation of the AC. 119 120 Curtis asked about line item 49 of the April 27, 2016 minutes concerning concurrency. This is an 121 example of an item that the AC discussed and made a recommendation to the Director to follow the 122 County code on addressing concurrency as to the level of service. The CDP lists this concurrency map as 123 adopted by plan which is a recommendation as an action item which is for guidance and is not mandatory. 124 Also, the same transportation policy states that the Kona Urban Area shall be designated as a critical road 125 area as defined in County Code 25-2-46. Only the County Council can designate a critical road area. 126 This implies that the critical road area was adopted with the approval of the CDP. So, this is not the law. 127 Director mentioned that the CDP AC can advise the Director on how the recommended projects can be 128 reviewed, but the CDP does not trump the County Code. 129 130 Hiram asked about how large a project needs to be before the AC would be asked for a recommendation. 131 Doug asked that projects that have a major impact on the community would also be submitted to the AC. 132 Hiram then spoke concerning the letter to the Director, from the AC, concerning the AC response to the 133 February 24, 2016, letter from the Director on “Request for Legal Opinion”. The Director feels that the 134 AC’s letter to him represents a positive initiative and that the AC is working closely with Planning. 135 136 Director said the Concurrency section of the CDP gives direction to the concurrency section in the code. 137 The KCDP provides specificity for roads within the road network. This section on concurrency in the 138 KCDP is not enacted by law and should be used as a guideline. Section 25-2-46 of the County Code is 139 the law. 140 141 Curtis discussed Lako Street and its positive impact to the Community and this could not have been 142 accomplished if Alii Highway was required to be built first. Director approved of this type of 143 involvement from the AC where recommendations are provided. 144 4 145 Discussion on Hiram’s letter to the Director continued. The role of the AC is summarized in the 3 146 statements in the letter. Additional copies of the letter were handed out to persons attending the meeting. 147 Page one responds to the Directors interpretation in the letter “Request for Legal Opinion” and there are 3 148 statements from the AC. These 3 statements were referred to as “Spot On” by Counsel thereby offering 149 agreement to the intent offered by the AC. 150 Curtis mentioned that the AC and the Planning Department are in a partnership in applying the KCDP, 151 asking Director to confirm that the understanding here is that the KCDP should be utilized as a guide. 152 The Director replied that this understanding is, in the words of Corporation Council, “Spot On”. 153 154 Counsel noted that the purpose of the CDPs is to add another layer of assistance to the Planning Director 155 from members of commissions that live along with their families within the community. These 156 impressions from persons living within the community are to be related to the Planning Director to assist 157 in decision making policies. Counsel agrees that the 3 items within the letter address the concerns that 158 should be followed by the AC. 159 160 The 3 items listed in Hiram’s letter from the CDP to the Director are: 161 1. Providing guidance to the Department if there are questions with whether or not a proposed 162 project, or specific component thereof, is consistent with the applicable sections of the KCDP. 163 2. Providing guidance if there is a disagreement with respect to the applicability of the KCDP 164 between the Department and a developer, and 165 3. Providing guidance with respect to interpretation of any applicable Goal, Objective and/or Policy. 166 167 Director mentioned that the General Plan will work with the all the various CDPs to incorporate the 168 concepts that can be applied island wide. All have different emphasis which may not apply island wide. 169 We need some consistency in all the CDP with some minor differences for each area. 170 171 Doug mentioned the need for a financing plan, otherwise, most of the projects and improvements will be 172 undeveloped. 173 174 Curtis mentioned the presentation of the Implementation of the CDP. We need to develop consistency for 175 the CDPs. Also, regarding letters from Mr. Matsukawa, should the AC request a response from the 176 Director to the letters submitted by Matsukawa? 177 5 178 Hiram does not believe we need a response from the Director to the Matsukawa letters. Doug requested 179 that the letters be forwarded to the Director. Doug moved that the AC forward the letters to the Director, 180 second by Greg Ogin, motion was approved unanimously. 181 182 Hiram said that the AC is trying to build a clear path that can survive from one administration to another 183 so that we can move ahead for the now and the future. 184 185 Curtis thanked the Director and Counsel from the AC and said that the AC is very committed to find 186 solutions to the problems and seek a solution to comply with the law. 187 188 Doug asked if an update could occur on the General Plan, Terry noted that April Surprenant (April) will th 189 update the AC at the May 25 meeting either by attending the meeting or by telephone conference call. 190 191 Open Space committee member, Kari, noted that April has provided a new CD with GIS information on 192 Open Space for subcommittee use. Hopefully this will help the Open Space sub-committee. 193 194 Curtis thanked the Director about the Open Space presentation made by April Surprenant and Bill 195 Brilhante. 196 197 Keoki Schattauer (Keoki) thanked everyone on the new Path Project approved by the County. 198 199 Director noted the success of the Blue Zones, open space and Smart Growth. 200 201 Meeting Adjourned. 6