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HomeMy WebLinkAbout2017-04-06 Hearing Transcript - PC Rule Amendments (Public Comments Only)WINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT APRIL 6, 2017 A regularly advertised hearing on the proposed amendments to the County of Hawaii Planning Commissions' Rules of Practice and Procedure (public comments only) was called to order at 10:13 a.m. in the County of Hawaii Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii with Chairman Gregory Henkel presiding. COMMISSIONERS PRESENT: Joseph Clarkson, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, and Myles Miyasato. ALSO PRESENT: Michael Yee (Planning Director), Malia Ho (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), Christian Kay (Planner), Shancy Watanabe (Planner), and Sarah Hata-Finley (Commission Secretary). And 3 members from the public in attendance. Open for public comment, amendments to County of Hawai'i's Planning Commissions' Rules of Practice and Procedure related to adoption of new Planned Unit Development (PUD) Rule 16, amending application processing and action timelines, appeal language, and revocation language for various permits and approvals, and amendments to Rule 4 for Contested Case Procedures. [Review and action of the proposed amendments to take place at the Joint Commission Meeting on April 10, 2017, in West Hawai `i.] HENKEL: Agenda Item No. 4, amendments to Hawaii, County of Hawai`i's Planning Commissions' Rules of Practice and Procedure related to adoption of new Planned Unit Development (PUD) Rule 16, amending application processing and action timelines, appeal language, and revocation language for various permits and approvals, and amendments to Rule 4 for contested case procedures. Review and action of proposed amendments will take place on April loth, this Monday, in West Hawaii, which will be agendized accordingly. So, would you please proceed, Maija? JACKSON: Yes, thank you. So, right off the bat, I want to apologize to the Windward Planning Commission because you'll be hearing this presentation twice. You'll become experts at our rules by next Monday. We don't get the opportunity to do a comprehensive rule amendment like this very often just because of the difficulty of getting the two Commissions together since the Planning Commissions broke into two. So, staff is pretty excited about doing some much needed revisions to the Planning Commission Rules. And, I'll just go over a summary of some of the main highlights of the suggested revisions. EXHIBIT C So, for Rule 3 for Declaratory Rulings, we're suggesting changing the filing fee from $500 down to $200. And, declaratory rulings are initiated to request that the Commission clarify conditions of a permit or application of law. This benefits both the applicant and the Planning Department. Historically, applicants have declined requesting a declaratory ruling due in part because of the $500 filing fee. They felt that was too high. Did you have a question, Joe? CLARKSON: Can we ask questions during JACKSON: Sure. CLARKSON: Why is there any cost? I'm just curious. Why is there a fee? JACKSON: We—we do have a cost because we do have to do a publication, and so there are costs that the Department carries associated to that. CLARKSON: And it adds up to $200? JACKSON: The publication costs exceed $200 usually, but we still feel like we have to hit that sweet spot where the fee is not too high to where people won't ask for a dec ruling, but it's not so low that we can't account for the publication costs. And, let's see, let me actually back up. Oh no, that's the next slide. Okay, contested case rule. Some of the changes we're proposing to the contested case rule are to remove the requirement to notify the public of—or actually persons other than the parties of a contested case, removing the requirement to provide notice to the general public through publication in the newspaper and remove the requirement for the applicant to serve notice of the contested case hearing on surrounding property owners. And, lastly, remove provision for public testimony during a contested case proceeding. So, the purpose for doing that is to clarify that the purpose of a contested case proceeding is for the parties, rather than the general public, to state their case. This change only applies to the contested case proceeding. The applicant will still be required to notify surrounding property owners of the Commission's first meeting on the application as stated in the other rules for the various applications, and to notice the general public through publication in the paper. So, as you knowI can explain that a little bit more—as you know, what usually happens is you get an application like let's say for a Use Permit, and at that first hearing, what would happen is we would publish it in the newspaper, and the applicant would provide notice to surrounding property owners. Then, at that first hearing, let's say, you get a petition for contested case, and you grant standing. Typically, the contested case is deferred to a later date, and it's that entire contested case proceeding that would not be noticed to the general public. After the contested case proceeding is done, it always comes back to the Planning Commission. You usually get a hearings officer's report, and that hearing would be published in the paper, and I believe that hearing would also be noticed to surrounding property owners. EXHIBIT C 2 So, we're just pulling the public notice element and public testimony element out of just that contested case proceeding so that the parties can really discuss their particular issues related to their case. Does that make sense before I go on? Any questions on that? CLARKSON: So, say for example, like this morning's Use Permit application that was published and the neighbors were notified JACKSON: Correct. CLARKSON: The neighbors were notified, how would, who would have had standing to petition for a contested case in that situation? JACKSON: So, today's case, notice was sent out to the surrounding property owners twice, and in that notice, Ms. Valdez included the Petition for Standing in a Contested Case with instructions on how to submit the petition. Her neighbors had concerns; they came and testified, but none of them chose to file a petition for standing in the contested case. CLARKSON: Thank you. HO: It's also in the contested case rules if you want to see what the criteria are to, to be granted standing. IKEDA: Maija, you know, I read the, Mike Matsukawa's testimony. JACKSON: Yes. IKEDA: And, he said we were, we would be in violation of the Sunshine Law. Can you clarify that? JACKSON: I may need Malia's help on this a little bit more, but my understanding is that HRS does allow for Commissions to do these types of changes to limit the public interaction as long as the Commission is conducting an adjudicatory proceeding which the contested case would be. Is that correct, Malia? HO: Yeah, it's kind of like think of a court case. You don't allow public testimony at a court case, but when you're operating at a public meeting, that's when you have to—the Sunshine Law doesn't apply to when the board becomes that. JACKSON: So, Malia, just to clarify that, if the Commission chose to conduct the contested case hearing, my understanding is it would be the same way. The public would be involved in the first hearing like, like today, and then the hearing is continued. The Commission conducts the contested case hearing, makes their recommendation, and then at the next hearing, the public would again have an opportunity to provide testimony and become involved. Is that correct? EXHIBIT C 3 HO: Yeah, that's correct. CLARKSON: And the public would not be even allowed to observe? I can see not participating in or being notified of the contested case, but the contested case hearings are not observable by the public? HO: I believe that's up to the hearings officer. If you guys are hearing the case and allow other people in the room also if stipulated by the parties as well, it'd also be. JACKSON: Okay. I'll move further into Rule 4. A few other changes that we are proposing is to add provisions for multiple intervenors, opposition to intervention and mediation by the parties prior to a contested case proceeding. Also requesting adding provisions to clarify purposes of a pre -hearing conference with the presiding officer, and clarify that the Commission does not have to incorporate in its decision a ruling upon each of the parties proposed findings of fact. And, are there any questions on those three changes? If you think of anything later, let me know. Okay, so Rule 2 which is petition for adoption, amendment, and appeal of your rules. And, Rule 12, that's for the Geothermal Asset Fund. For those two rules, we're proposing to change the appeal language to clarify that appeals should be made to the Third Circuit Court rather than the County Board of Appeals. Any decision of the Commission is appealable to Third Circuit Court, and decisions of the Planning Director are appealable to the Board of Appeals, so we're just trying to clarify that. This change would make Rules 2 and 12 consistent with all other Planning Commission rules regarding appeals. Those other rules all state that appeals go to Third Circuit Court. And, then we have three other changes we're suggesting to various rules. One of the main changes is to clarify that any appeal that somebody would file would need to done within 30 days after the person desiring to appeal is notified of the Commission's decision. I believe currently, it doesn't reference a time in our rules, so because 30 days is such a limited period of time, what usually happens is by the time somebody wanting to appeal contacts Planning and asks how do I appeal this, they are right up against that 30 -day deadline, so we just want to include that in our rule. We are also requesting to add revocation language to allow the Commission to revoke Special Permits, Shoreline Setback Variances, and Planned Unit Development permits. We're suggesting changing existing revocation language for Use Permits and SMA Permits to be consistent with the language in the other permits. And, I can just real briefly go over that. So, let's see. If you look at Rule 6-11, the new language says that the, a Special Permit may be revoked by the Commission. Number one is basically if the applicant writes in to the Commission requesting that the permit be revoked because they don't want to do the use that was approved under the Special Permit. Number two says that the Commission can revoke a EXHIBIT C 4 Special Permit if the Director requests that it be revoked based on non-compliance with conditions of the permit or the use authorized under the permit is creating a threat to the health or safety of the community. And, then, in any case that any permit is revoked, obviously, we would be required to notify the landowner in advance. And, then, the last change to the various rules is related to the timing for hearings. We wanted to, each permit had different timelines for when the Director needs to provide a recommendation to the Commission and how quickly the Commission needs to act. We wanted to make all of the permits that are approved by the Commission consistent with the timelines. So, this, the changes would make it so that a public hearing would need to be held within 90 days of acceptance of an application, and the Commission would need to make a decision within 60 days after close of hearing, unless a longer time is agreed to by the applicant. These same timelines would also apply to processing permit amendments. And, before we move further because I'm going to hand it over to Christian to talk about the PUD Rule, do you have any changes on, I mean any questions about what's been suggested so far? Okay. Thank you. KAY: You gotta tag me in. JACKSON: Go for it. KAY: Good morning, Commissioners. How are you? MIYASATO: Good morning. KAY: Thank you, Maija. So, this is a little bit different and we're going to get into a little bit more specifics about the Planned Unit Development Rule in that we are actually proposing a new rule for a permit that the Commission now has authority over. Action is to add a new rule for guiding the Commission's decisions making for Planned Unit Development or PUD's. The planners like to speak in acronyms so we're going to say PUD's from now on. The purpose is that in 2015, the County Council amended the Zoning Code so that PUD permits are issued by the Planning Commissions instead of the Planning Director. The change was made to provide the public an opportunity to testify or request a contested case proceeding on a PUD application. The rules were developed by adapting the Zoning Code language and adding appropriate sections to help clarify and direct the PUD process for not only the Commission but also applicants and the Planning Department on how to move forward with that process. The requirements and process closely follow what we used to do in the Planning Department prior to the 2015 Code change. EXHIBIT C 5 I just want to highlight a few or talk about what a PUD is and highlight a few important notes for you to take away. A PUD is a land use planning and design process which is intended to encourage the comprehensive planning of a site. So, instead of a specific parcel or a specific use, we're looking at the whole type of site. It needs to be compatible with the surrounding community, so it should be pretty consistent with the character and the nature of the surrounding community. It should adapt the design of development to the land, so if there are geographical issues like drainage or slopes or things, a PUD can help kind of work around some of those issues. And, then, it's intended to diversify the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups. PUD requests generally are, include a set of requested deviations or exceptions from our Zoning and Subdivision Codes. I talked with the planners who used to do this under, when they were being approved by the Director, and they said mostly, they were residential developments in nature and the main types of deviations that were requested were exceptions or deviations from minimum lot size requirements. You have an agricultural lot that has a minimum lot size requirement of five acres. This process would allow you to go under that. Setback requirements so you wouldn't be stuck with the Zoning Code says in terms of what your setbacks are. Again, that would help make it consistent with yards for the surrounding community. Building height requirements and then from the Subdivision Code is exceptions from the subdivision roadway standards and exceptions from requiring provision of roadway improvements like curb, gutter, sidewalk. The PUD process, just in a nutshell, is very similar to other processes that we go through permits. The applicant submits an application form and a $500 processing fee along with descriptive narrative of the entire project. Again, this is a comprehensive developmental project. How it complies with criteria for approval which is laid out in the rule, requested deviations and exceptions from Zoning and Subdivision Codes, a development timeline, how long it's going to take them to commence and complete development, and how the request conforms with the General Plan, any applicable community development plan, any design guidelines or master plans—those types of things. Along with that descriptive narrative, they need to submit to us a comprehensive site plan which clearly outlines the types of buildings, uses, any proposed or existing roadways or easements, proposed subdivision of land, any on-site or off-site parking, public areas and uses, landscaping and open space. So, again, the idea that this is comprehensive. We're now having a visual idea of what this is all going to be looking like. We also require architectural drawings for all buildings, demonstrating that the design character. A visual depiction of all the requested deviations from the Zoning and Subdivision Codes. And, this is important so that if a PUD is approved and the applicant then goes to go to start getting building permits and planning permits, that the planners, the land use plan checkers up front can EXHIBIT C 6 actually, instead of having to go through a long list of deviations, they can also look, see what it looks like on paper. So, again, very similar to the timelines, we ask for an original and 20 copies. We disseminate the copies to affected agencies for comment. They come back. We make a background and recommendation report just like other permits that we do, and the Commission shall conduct a public hearing within 90 days of that accepted application. Following the close of the hearing, the Commission shall either deny or approve with conditions. This is an important note. If the Commission fails to render a decision within that 60 -day period, the application shall be considered as being approved so in some cases without conditions, so it's important that, for these types of permits, that we stick with those timelines. The reason it's important is because a lot of these are a little more involved. Applications tend to be in the hundreds; in some cases, over a thousand pages because you have a lot of this design and everything else. So, we're going to meet our deadlines to get you the information, but it will be more to review as they come along. And, I'll talk a little bit later about some suggested training for not only the Commission, but also, you know, we're going to be going along and getting some extra training as Planning Division staff since we, we haven't done these before. So, we're going to be working with the staff that used to help, give us an idea of how to deal with these. Moving on, the Rule and Code layout criteria for approval, this is not an exhaustive list, but it will give you an idea that the criteria can, that we want to look at, is that can the project cut commence, be completed within a reasonable period of time. How does it conform to the General Plan, community development plan, any master plans or design guidelines, how well do the deviations or exceptions from the Code create a more harmonious development, sorry, within the surrounding community. And, then the Rule and Code layout specific criteria for different types of PUD uses. So, in the case of residential or agricultural use, we look at how is the development in harmony with the character of the surrounding area. It doesn't allow any increase in density that would otherwise would be allowed for in that zoning designation, and, it, we need to maintain open space standards required by those zoning designations so we can't vary from that, so that's the type of criteria we've looked at to approve a residential or agricultural PUD. For a commercial PUD is, does the development create an attractive development which does not adversely impact surrounding properties/developments? How does it avoid excessive traffic congestion? How does it provide for proper access? Internal traffic and parking? And, then for industrial developments, does it provide an efficient or well -organized development? Does it provide for adequate freight service and storage? And, how does it deal with any adverse impacts on surrounding properties or developments? It's important to note that the Commission does not have to approve all of the requested uses, plans, or Code deviations that come in, in the proposal. Rather, they can approve some and deny EXHIBIT C 7 others based on how well they meet approval criteria. So, that's a little bit of a difference in how we do things now. Just a few additional things that we added to the Rule that weren't necessarily in the Code are how to deal with PUD's being proposed in areas with special design districts. For example, Pahoa Village or Kailua Village that have special design districts that require additional review against design guidelines by a design committee, and the process for that, and timing for that is laid out in Section 16-5. The rules highlight appropriate condition types so it gives you an idea of what types of conditions we can put on a PUD. Again, it's not an exhaustive list. I just wanted to note that PUD's cannot condition off-site alterations or improvements. So, we can't like in a rezone, where we can recommend off-site roadway improvements. We cannot do that for a PUD. The Code is very specific on that. We added, oh, pardon me, another thing that the PUD rule talks about is no separate or additional Use Permit or Plan Approval is required, but rather, it's considered approved under the PUD. So, how we're dealing with that is normally, if we have a Special Permit or something like that, a condition is you prior to, prior to occupancy, you need to get Plan Approval and things like that. What the rule is saying here, what the Code is saying here is it's outright considered approved. So, we're saying that you need to provide us all of the information that we would normally get through a Plan Approval process as part of the project submittal before we'll accept it. So, we added a few sections to the rule to help clarify Section 16-6 is notice of filing and action on PUD application and sign posting. That's just, again, notification for surrounding property owners and how to, the process to post a sign. A process for continued hearings, so if the applicant requests to continue the hearing, we will charge them a fee and give them an idea of what that process looks like. And, we added an appeals process which wasn't explicit in the Code. And, then, also Section 16-5 [sic -15], we added PUD permit revocation, and that's something that Maija talked about a little bit before about the possibility of revoking a permit if the applicant requests it or if they're in non-compliance with conditions. There were some suggested revisions that we handed out, and this is a little two-page front and back sheet. Most of the changes that are being proposed here are pretty small. Just non - substantive changes. So, in Rule 16-4, in order to be consistent with what the Code looks like, we just wanted to change indentation and subsequent lettering of the subsections. So, we haven't changed any of the information. It's just how it's laid out. Again, Rule 16-6, we left out a parenthesis, so we added that parenthesis in, and then we added that subsection "d" for continued hearing request. And, then on the back, Rule 16-8 we didn't capitalize "commission" to be consistent with the other ways that we signify Commission with a capital "c." At any rate, it's a lot of information, and right now, we just wanted to give you an overview of this new type of permit that we're going to be now responsible for moving forward. You're not expected to make a vote today on it. It's just to open up some public discussion if they had any EXHIBIT C on these proposed rule changes. And, if you have any questions about the PUD rule, I'm happy to take those now. CLARKSON: How many are there per year or per decade typically? KAY: That's a good question. It varies. Do you, do you happen to know? [Turning to Mafia Jackson. ] JACKSON: Three or four. KAY: Maybe three or four a year. There's generally one or two guys that do PUD's. It's kind of their bread and butter. And, the majority of them are over on the west side. So, it's not to say that you'll never see something come to you, but historically, they've been more over on the Kona side, and, yeah, so it's not a lot. Again, in my conversations with the planners that generally—residential or agricultural subdivisions or developments with their residential component, and it's just a way to, again, to more of a comprehensive site planning that gives them the ability to not have to meet all of the Code requirements for setbacks and height requirements and curb, gutter, sidewalk—those types of things. I've talked with Malia about appropriate training, again, since we don't have any applications right now. We have three or four that are in queue but as they are currently constituted, they wouldn't meet the minimum requirements to accept a completed application since the rule highlights further requirements so, but in the near term, maybe in the next couple of months, we may have some coming to, to the Commission. So, what we wanted to try and do is when we have a small agenda, is maybe stay after for an hour or so and go over, kind of this is what you can expect to see in a PUD application and talk a little bit about that so that when we get one come in, we'll be ready to deal with it and process it. Any other questions? HENKEL: I have a questions, but I think it relates to the contested case hearing procedure so that would be Maija. KAY: Tagging you back in. All right. HENKEL: You know, in the, for transparency, I don't see it written down anywhere here, but on the, on the—on your presentation, it showed that the public wouldn't be allowed to participate in a contested case hearing, but also they wouldn't be allowed to even observe it, and I feel that in the interest of transparency, that they should be able to observe it even though I understand that if everybody just allowed participation, it might become, you know, it might overburden the whole proceeding. But, I don't know why people couldn't be present to watch what's going on, and I'd kind of like to see the language change to reflect that personally. HO: [inaudible] JACKSON: It's silent. HENKEL: Well, you said it was up to the discretion of the hearing officer. EXHIBIT C 9 JACKSON: The hearing officer. HO: Yeah, I mean, historically, they have people go to observe them if they want to. They're not barred from seeing it. It's just like the Board of Appeals. Everybody—you can sit in if you'd like to, but you don't participate. HENKEL: So, there isn't any barring of—it's a public hearing, right? Even though it's a contested case hearing. Only the contested case applicants can take part but anybody can be allowed to see what's going on. JACKSON: That's correct. HENKEL: Okay, thank you. JACKSON: So, I think, Malia, if Greg, I think what he's saying is, is there a way that they can just add that it not be up to the discretion of the hearing officer but that we can actually put some statement in there that says the contested case can be observable by the public? HO: I think I misspoke earlier. I mean, it is up to the discretion of the parties. They have, both can decide on many different matters when it comes to a contested case, but I would say that because historically people have been allowed, I think that the majority of the time, they will still be allowed. I don't think you need to specify that because it's already JACKSON: So, you think it's kind of a non -issue that's just understood? HO: Yeah. HENKEL: Okay. CLARKSON: And, all of the timelines have been made conditional as to contested case procedures? So, in other words, if there's a 60 -day time limit for approval, and all of a sudden a contested case hearing comes up, that, it's crystal clear that that time period has been delayed until after the contested case is heard? JACKSON: I don't know that it specifically states that in the rule, but I think that it's again implied because if you grant standing, it's implied that you go into the contested case procedure. And, then, Malia maybe you can clarify that, too, because the timeline that we added was the Commission makes a decision within 60 days of close of public hearing. So, when they come back with the hearings officer's recommendation, would they just close the hearing after receiving that and then they have 60 days to make the decision? HO: Yeah, it's after the, basically when they get the Findings of Fact and Conclusions of Law from the hearings officer. So, you have your initial hearing, then the contested case, then there's another hearing before the matter is closed. So, you guys wouldn't actually close the matter until that last one, and that's when the 60 -day clock starts. EXHIBIT C 10 JACKSON: Are there any more questions? Okay, and there's no action on this item, so HENKEL: Yeah, so I guess that's it. Thank you. JACKSON: If you look through the rule, and you see other things that you might want to change or have questions on, you can always, we can always discuss it Monday. HENKEL: Thank you, Maija and Christian. The discussion ended at 10:48 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT C 11