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HomeMy WebLinkAbout2017-06-01 Hearing Transcript - Kau CDPWINDWARD PLANNING COMMISSION COUNTY OF HAWAII HEARING TRANSCRIPT JUNE 1, 2017 A regularly advertised hearing regarding the Ka`u Community Development Plan was called to order at 9:39 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, Gregory Henkel, Donald Ikeda, and Myles Miyasato. ABSENT & EXCUSED: Donn Dela Cruz, Thomas Raffipiy. ALSO PRESENT: Michael Yee (Planning Director), Daryn Arai (Deputy Planning Director, 9:16 a.m. to 10:33 a.m.), Amy Self (Deputy Corporation Counsel for the Planning Director, 9:26 a.m. to 10:41 a.m.), Malia Ho Hall (Deputy Corporation Counsel for the Windward Planning Commission), Jeff Darrow (Planning Program Manager), April Surprenant (Planning Program Manager, 9:50 a.m. to 10:33 a.m.), Ron Whitmore (Project Manager for the Ka`u CDP, 9:16 a.m. to 10:33 a.m.), Maija Jackson (Planner), Christian Kay (Planner), Shancy Watanabe (Planner), Leana Gloor (Planner, 9:43 a.m. to 10:33 a.m.), Keiko Mercado (Planner, 9:43 a.m. to 10:33 a.m.), and Sarah Hata-Finley (Commission Secretary). And 8 members from the public in attendance. KA` J COMMUNITY DEVELOPMENT PLAN: On October 27, 2015, the Ka`u Community Development Plan (CDP) Steering Committee recommended approval of the Ka`u CDP. After reviewing agency comment, the Planning Director is recommending non -substantive amendments to the CDP. Pursuant to Section 2-28 of the Hawaii County Code, within sixty days after receipt of the Planning Director's recommendation on a draft community development plan or any amendment thereof, the Windward Planning Commission shall transmit the draft community development plan or any amendment with its recommendation through the Mayor to the County Council. Likewise, pursuant to section 15.1 of the General Plan, the County Council may modify or amend the community development plan before enacting it by ordinance, but it shall give the Steering Committee and the Windward Planning Commission an opportunity to review and comment upon substantive amendments and modifications before final adoption of the plan. The purpose of this meeting and public hearing is to afford all interested persons a reasonable opportunity to comment on the Ka`u CDP and for the Commission to review the draft Ka`u Community Development Plan (CDP) submitted by the Ka`u CDP Steering Committee and the Planning Director and consider its recommendation to the County Council. HENKEL: Okay, we're going to move on to Item No. 4, the Ka`u Community Development Plan with—Ron is going to do the presentation. EXHIBIT C WHITMORE: Thank you, Chair. I'm Ron Whitmore. I'm the Deputy Director of the Department of Research and Development with the County. Here today on behalf of the Planning Director because I was the Project Manager for the Ka`u CDP as it was going through its development process. I want to thank the Director, thank the Commissioners, counsel, staff for this opportunity. I also want to thank folks who I see here today from Ka`u. It was a tremendous pleasure for me working with the people of Ka`u and supporting development of this plan, and many of my favorite people and friends from Ka`u are here today so appreciate you guys coming out. Just so I'm clear on the protocol as well as for the Steering Committee members, this meeting is agendized as well as a Steering Committee meeting. Is that correct? HENKEL: I don't think so. WHITMORE: We don't know. HALL: How many—how many of them are here? WHITMORE: There are—there are four here, and just to recognize them—John Cross is a member of the Steering Committee, non-voting member, Michelle Galimba to his right. I'm sorry, there's three here, excuse me. John, you're not a Steering Committee—and Ron Ebert in the back over here, so. So, there's three. There's not quorum, but there's more than two. They're gonna confirm, but I, it's my understanding that it is agendized as a Steering Committee meeting which allows them both to testify and to respond to any questions the Commissioners may have during discussion. Is that correct? Okay. HENKEL: Ron, excuse me, I don't see that on the agenda. It's a Sunshine Law issue, though, right? Maybe HALL: —It's fine. As long as they're not talking to each other. You guys can ask them questions. They're just members of the public first of all, and then after that, as long asI really know how to explain this properly SELF (from audience): They're going to check and see because they are not supposed to HALL: Oh, okay. WHITMORE: Oh, these folks can probably answer that question. [Referring to Leana Gloor and Keiko Mercado who entered the room.] SELF (from audience): They can't have a discussion if WHITMORE: Keiko— HENKEL: Amongst themselves EXHIBIT C 2 SELF (from audience): Right. Or even with you guys. WHITMORE: Keiko, quick question. This meeting is agendized as a Steering Committee meeting. Is that correct? MERCADO (from audience area): Yes. WHITMORE: Yes, all right—we have an answer. HALL: There we go. HENKEL: Okay, thank you. WHITMORE: Okay, very briefly. I have everything we presented back in May at the hearing, but I have no intention to present it all again because it's the same four Commissioners here present, same staff Do want to give a very brief refresher and then touch on a few items. One is a question that came from a Commissioner that I'd like to respond to, and the second is some additional public comment that was received by the Department between meetings. Again, big picture. I tend to have a pretty calm demeanor, but I am really very excited to be at this point in the process, and this very much is a cause for celebration because the Ka`u community and the Steering Committee members specifically have worked long and hard to get to this point, and we very much appreciate the support that we, that the plan received through agency review and through the Director's positive recommendation. But, again, just to reinforce some of the three key things to keep in mind as you're concluding your deliberations is that this was, this process that resulted in this recommended plan was extremely credible, highly participatory, collaborative, very systematic, strategic, and transparent. So, throughout the process, the process was clear, the decision points were clear, and everybody who had a stake in the decisions being made had more than ample opportunity to weigh in. Which leads to the second point that this has been vetted at all levels to an extreme—at the community level, Steering Committee level twice, and through agency review. And, again, to remind you, every single strategy in the Community Development Plan has a rationale behind it that is in writing, and so if questions do come out, come up about specific policies or actions, we ask that you start with the rationale behind those when considering any potential recommended revisions to be consistent with the process that's led us to this point. So, again, the CDP does what you would expect from a community plan, and as is provided, as—for the direction also provided in the General Plan in Chapter 15, does four fundamental things. One is it lays out the preferred land use pattern for the district. And, then building on that foundation, it tackles very specifically, the three main pillars of what makes for healthy, sustainable communities: natural and cultural resource management; the building blocks of community including infrastructure facilities and services; and then what builds on top of that, a resilient, sustainable local economy. And, those numbers on the screen there correspond with EXHIBIT C 3 the four main substantive sections of the plan. I'm not going to go into that in detail, but if you have any questions about any of that, many of us here are available to respond. And, again, where we're at is the Steering Committee made its formal recommendation for approval in October of 2015. That recommended version of the plan then went through agency review. The Director then considered the Steering Committee's recommendation as well as all the agency comments and made his favorable recommendation that included some non - substantive revisions that were really just a function of useful insights from agency comment. An effort to smooth out some of the organizational elements of the plan that were a little bumpy, and then in those cases, to provide clarification, as needed. And, we went through much of that at the hearing in May. And, again, so we're all on the same page, we're now at that June 1st hearing, the second of two. You have 60 days from when you received the plan, which I think brings you to sometime in late June, and so, again, Counsel, correct me if I'm wrong, but if they don't act today, then it goes to Council with a negative recommendation. Is that correct? But, the bottom line is today is your scheduled meeting to make a decision. I guess as, if necessary, you could request a special meeting some time before your deadline, but the assumption is that today you'll conclude your discussion and come to a recommendation. And, then it goes to Council. We'll go through a similar process. Planning Committee and then to full Council. Before they make their final decision, it goes to the Mayor's desk. So, again, that's the limitation, the limits of the overview. What I'm going to do is I'm going to dive right in to some of the comment we received since the May meeting. And, again, just to remind you because most of it relates to some of the land use policies in the CDP—the shoreline setback, the meaning of the land use maps in the CDP. I just want to remind you what the General Plan says about the scope of CDP's as it relates to land use. And, these are all verbatim quotes from Chapter 15 of the General Plan. And, the key terms, I think, are direct, designate, and guide. And, fundamentally, what this is all about is what I would consider a healthy attention between the General Plan and the CDP's where on the one hand, the General Plan is very clear that the General Plan is controlling when there's conflict between the two. On the other, the General Plan itself uses very strong language to empower community development plans to provide very specific land use guidance. And, just for kicks, I looked up the definition of "direct," "designate," and "guide," and they all speak about control, govern, regulate, identify, steer, etc. And, so, it's, a significant authority on the land use front is given to CDP's to direct physical development, detailed development patterns, and provide clear guidance on preferred future settlement patterns. The other thing to keep in mind is that there are four distinct types of strategies in the CDP, and this was done very intentionally and very thoughtfully. Recognizing that the initial round of CDP's created some confusion around what really different types of language and different types of strategies in a CDP really mean. And, so we tried to be really clear on that front. The key distinction is between what would be considered an action and what would be considered a policy control. And, that's really where this healthy tension lies. So, the vast majority of what you see in the CDP are either County actions which is basically, the County, the community's EXHIBIT C 4 expression of what they consider to be priorities of what the County should do. None of them are mandatory. They're simply saying, "Hey, these are the infrastructure priorities for our community. These are the problematic priorities for our community. Counsel and administration, we'd like you to take the appropriate next steps, whether that's appropriations or what have you to move on those fronts." And, then the other types of actions relate to non - County agencies, State and Federal, and then community-based actions, those that require leadership and initiative on the community front. Again, none of those are legally binding in any way. They're simply trying to be clear that to achieve the community's goals, all these actors really would need to do these things, right? So, separate from those actions then are policies, and there's even two types of policies in the CDP. One is called policy intent. `Cause what you'll see when looking at the General Plan in particular is lots of language that described kind of the preferred future. This is what we'd like to see. But, they're not specific enough or clear enough to provide any direct guidance on what should be done. So, it's things like protect the shoreline. It's really hard to make meaning of that when considering a specific, let's say, application before the Commission. In contrast, that's a policy intent. And then policy control, on the other hand, is really in the spirit of, of these sorts of, this authority that the General Plan gives to CDP. It's directing, designating, and guiding and, sometimes, in fairly specific ways about how to achieve community goals using land use tools. So, again, I just threw up a couple of examples so you're clear on how that's, how that displays in the language of the CDP, and what I'm showing you here is actually the Planning Director's recommended revisions because that's a lot of where the Director focused his recommendations. To really be very clear on these points about, what are the different types of strategies and specifically as it relates to land use policy, what authority does the CDP have vis-a-vis the General Plan. And, so you see, you know, corrections of language to make sure it's using language that mirrors what's in Chapter 15 of the General Plan and strong emphasis on the fact that the General Plan is controlling when there are direct conflicts between the CDP and the General Plan. And, also clarifying that any, in all those cases where there's conflict and/or amendments would be, need to be made to the General Plan to bring the two into alignment, the CDP specifically notes where that would be necessary and appropriate and includes a follow-up County action to do that, right? And, so a great example is Policy 7 and its corresponding Policy 15. So, you see in Section 3.4, you have a land use policy. This is a policy control. It's a map that is similar in nature to the LUPAG Map in the General Plan but is the CDP's policy map, and it does some important things. One is the red at the bottom clarifying, and although this was noted up in Section 2 there, clarifying that if the CDP and General Plan are in conflict, the General Plan is controlling. And, then 3.5 is the corresponding action, the follow-up action that would be required to bring the General Plan and the CDP into alignment to the amendments required to the General Plan to, to bring the two into alignment. So, that would be a follow-up step. So, that's kind of general land use reorientation to what the CDP tries to do and the tools it tries to use to achieve community objectives using land use tools. EXHIBIT C 5 And, then quickly on the shoreline setback as this is applied, and this relays, Joe, to some of the questions you raised by email. You had some questions about ownership of shoreline parcels and zoning, right? So, again, the Shoreline Setback Policy, Policy 28, is one of many tools that the CDP tries to use to achieve one of the community's highest priorities, which is to limit development on the shoreline. And, we don't need to go over the details again—can talk through this again if you'd like during your discussion. But it's again, like every other strategy in the CDP, it's an effort at using the tools that are already available—in this case, those described in Planning Department Rule 11-5, giving the Planning Director the authority to establish shoreline setback. And, again, just to remind you what Policy 28 does and doesn't do, it's triggered when development is proposed on any parcel that includes part of the Special Management Area in Ka`u. The starting point is the quarter mile setback; however, the applicant always has the option, as part of their SMA review process or through other means, to make a case for a different setback. And, the fundamental idea here is conditions and coastal properties are often very site specific and unique, and so it's important that information specific to that place and the type of development being proposed is considered and weighed when making the final decisions about what an appropriate setback should be, right? So, I'm going toI have available a number of resources if it'd be helpful to look atzoning, land use designations, ownership relative to coastal parcels. But, in general sense, Joe, to answer your question, the privately owned parcels in Ka`u are, the coastal parcels in Ka`u at this point are very few so there is two that are between basically Ocean View andI guess there's three. Three between Ocean View, you know, Ranchos, and South Point. One is the large parcel that made the news just in the last couple days that's for sale again and the various public entities have tried to purchase over the years. Another is the one, the smaller one immediately adjacent to itdirectly below the Ranchos Subdivision. And, the third is to its east, which is the large Kamehameha Schools parcel, Pakini. And, then from there, you're into DHHL property through South Point. And, then when you get then there's a section of next public private ownership between South Point and Honu`apo. All of, well, several of which have tried that—community organizations and PONC have tried to purchase in the past, one of which is currently being subdivided to move the developable parcels mauka adjacent to the town. A third, that are—I think again up for sale because the County wasn't able to make an offer that the owner could accept, and then a third, that's got a pending subdivision application. And, then from there between Honu`apo and Punalu`u, it's almost uniquely publicly owned with a few exceptions—one mauka parcel just above Whittington Park. The Carroll property, which has a house on it there at the shoreline, and then one other property which I think has a hundred different people's names on the title which would be difficult to develop. And, then from, between Punalu`u and the National Park then, you have a, a largeI think it's either a DLNR Kamehameha Schools owned parcel, and between there, you have several very large privately owned parcels including The Great Crack and several parcels that have large mac EXHIBIT C 6 nut orchards on them, so. Again, I can, if you'd like, I can show you much of that if you'd like graphically in maps, so. So, that concludes what I prepared for the Commission today. Obviously, available to respond to any follow-up questions that Commissioners may have. HENKEL: Thank you, Ron. Are there any questions from the Commission? Yes, Joe? CLARKSON: Well, II had asked Ron to, or somebody from Planning, to present that information because I wanted to understand the potential for shoreline structural development in Ka`u not knowing who owned the shoreline basically in detail, and, thereby, understand the motivations of, of the Steering Committee and all the people who were so much in favor of a very extensive setback. And, it looks to me like that six miles worth of waterfront that are associated with the 16,000 acres that has just been put on the market is the vast majority of Ka`u shoreline that would be even subject to structural development. WHITMORE: Yes. Yes, it's that one there. CLARKSON: Right. WHITMORE: And, then the other strip is between, yeah, Honu`apo here and, and the DHHL property here. So, this is, I think, Kamehameha Schools owned, and they've already I think gone through a subdivision process where they agreed to a significant structural setback much farther than a quarter mile, I believe. And, then, you have a State-owned property which is the green hatching here, and then you have this strip of privately owned between, between that and Honu`apo. CLARKSON: So, these aren't color -coded by ownership? This is zoning or WHITMORE: The ownership is represented in the green hatching. That's publicly owned. The rest are private. CLARKSON: Okay. WHITMORE: And, what you don't see in the colors here is the light—you don't see it very well—the light blue is Cons—this is the State Land Use District. So, the light blue is Conservation. The green is Agriculture. You don't see it very well, but all along the shoreline you have about 200 feet of Conservation District at the, that heads in mauka. CLARKSON: Thank you. WHITMORE: The important thing I think to note here is that, you know, we don't have the parcel layer on, but every one of those parcels with maybe—well, I'm not sure which exceptions there'd be—are very deep, right? The ones in particular or all of these, the one here and all the ones through this strip basically the boundaries go from the shoreline up to town or very near up to town, right? And, so, part of the consideration was well, not only does the policy allow EXHIBIT C 7 flexibility for smaller parcels, those that are less than, 200 or less feet deep, but we certainly looked at this issue of well, really, how is it impacting development potentially. And, they're all so deep. It no way limits permitted uses in, in these districts, right, because the landowner has significant flexibility about where they would place permitted structures, right? And, you don't even get a sense for the scale here, but these are significant distances you see between the shoreline and the highway. HENKEL: Are there any other questions? Thanks, Ron. This is the point where I would ask the applicant to come forward, and I was thinking about the Steering Committee, but I, you know, two of them are signed up to testify so, we'll just move to public testimony at this point. HO: Or you could, I mean if you guys have questions for them, you can call them up. HENKEL: Would the Steering Committee, would you guys like to come up and comment? Just comment on the public testimony part? Okay. Thanks, Ron. So, we'll move into the public testimony. I've got three people signed up. If anybody else out there would like to sign up, it's not too late. You can sign up by the door, or if you have written testimony, you can submit it and it'd be distributed. But, I'll call Michelle Galimba, John Cross, and John Replogle. Did I get it? REPLOGLE (from audience): You got it. HENKEL: Thank you. REPLOGLE (from audience): Am I supposed to go up? [Inaudible.] HENKEL: And, we have one more signed up so we've got four chairs, so we'll just wait and do you all together. Thank you for your patience. And, Starlette Freitas. Would you please raise your right hand? Do you swear or affirm to tell the truth on this matter before the Windward Planning Commission? TESTIFIERS: I do/yes. HENKEL: All right. We'll start with Starlette and work our way across. Please state you name and where you reside, and proceed, and I'll give you three minutes, I guess. Is that, is that enough time for you guys? Okay. FREITAS: My name is Starlette Freitas. I live in Na`alehu of Ka`u. I definitely support the CDP, and I guess my only main concern was the shoreline thing because I myself have a lot of— what do you call thatcultural, and ancestors that are all along these coastlines, you know? So, that's my main concern and other than that, I support the CDP. Thank you. HENKEL: Thanks. Michelle, you're next. EXHIBIT C GALIMBA: Thanks. My name is Michelle Galimba, and I'm on the Ka`u CDP Steering Committee, and I did testify in Na`alehu already so I'm going to keep this really short and just ask that the Planning Commission approve the CDP because it does have strong support from the community and expresses the desires of the community. And, I want to thank Ron Whitmore for all the work, and the Planning Commission in general for the huge amount of work that they put into making this CDP possible. HENKEL: Thank you. John? REPLOGLE: Thank you. My name is John Replogle. When the CDP idea first came out, the community in Ka`u responded very well in regards to—the people of Ka`u have always felt that they wanted a say in how our district went into the future if you will. There have been many developments proposed in Ka`u, and they've met with constant push back, and so this was an opportunity for the people of the district to express what they were looking for into the future. And, so this, this CDP that we now have here, a lot of work went into it. Effort. Fighting. And, one, one issue in particular I want to speak to is the coastal setback. That started out at three miles, and arguing that three miles was too much. That would be like to the bottom of Na`alehu school ground. So, we got it slowly. Over the debates, it went down. I wanted 500 meters, not a quarter mile, and eventually, we settled on the quarter mile. Then, it came down to there were people who had property inside the quarter mile that had been zoned for development in 1979 or something. And, so, the setback advocates conceded and said, "well, you already have that, you should be able to maintain it and keep it and we'll go forward, but anything new, we want this in place." And, we were able to get this into the CDP. And, the thinking in part is that if you are a quarter mile back from the high water, you are still on oceanfront property. And, it's just a short distance to the front. It's still your property. You can still enjoy it. Nobody's going to build in front of you. It's, and as Ron pointed out, the properties we're talking about have the room to be a quarter mile back. There, the particular ones I know of are zoned at 5 acres. That would allow for that thank you—setback. The other important thing in Ka`u is NOAA does what they call a rapid assessment of what our reefs and things are like around the State, and they get in a boat and they circle each island and they have designated points and they dive in with aqua lungs for 20 minutes and out. And, in that 20 minutes, they have to describe the biomass or that would include fish, limu, reefs, everything. And, they found on the coast off of, makai of Na`alehu, they found the biomass to be at least as great as or greater than the biomass in the northwest Hawaiian Islands. And, that, in part, is because there's no lights, there's no run-off, and it works. And, in this day and age where we're losing our reefs, The Great Barrier Reef, I think we need to take care of Ka`u, and that's—that's part of this, this whole setback. As Starlette mentioned, the cultural, the ability for you to walls along the coast and not feel that somebody's looking out their bedroom window, that's, that's who the people of Ka`u are. And, I truly hope you will support the CDP and the setback. Thank you. HENKEL: Thank you, John. Mr. Cross? EXHIBIT C 9 CROSS: I'm John Cross. I live in Hakalau. I work in Ka`u. That is why I'm a non-voting member of the Steering Committee. I used to be the vice-president of real estate for C. Brewer. Managed 31,000 acres of land in Ka`u. Liquidated most of that land. Then, I worked for Ed Olson Trust with about 10,000 acres in Ka`u. And, I've resigned from the Olson Trust if you hadn't heard. I am no longer working for Ed Olson. I am now working for a firm called "Ka`u Valley" that owns 1,600 acres in Ka`u. So, I'm, I'm rapidly disappearing. I advocated large landowners on the Steering Committee, and one of my biggest issues was what I thought was a taking. A taking of, of private property rights. The setback being one. Other issues, changing of zone. And, I argued for the—against the quarter mile setback. And, we have had, have a very powerful Steering Committee Chairman, Leina`ala Enos, and she said to me, "John, listen. It's what the people of Ka`u want. It's not what you want." And, I had to then step back and say, "yes, it is what the people of Ka`u wanted." It may be my desire to have less than a quarter mile, but that's for the future to decide, and that's for the County Council or the General Plan and someone else to take those things. It's not gonna happen now. So, as such, I agreed with the CDP. I like what we as a community have presented to you. We do have a document that represents what the people of Ka`u want. HENKEL: I thank all of you very much. There's only the four of you, and two of you were on the Steering Committee, right? Or, three of you? Would you like to add anything? Give you a little more time? GALIMBA: I'm good. HENKEL: Would anybody else like to testify? EBERT (from audience): Yeah. HENKEL: Well, let's—you guys can return to your seats, and we have one more gentleman if you would like to sign up. Yeah, please come up and be seated. Would you raise your right hand? Do you swear or affirm to tell the truth on this matter before the Planning Commission? EBERT: Yes, sir. HENKEL: Thank you. Please state your name and where you reside, and you can have three minutes, sir. EBERT: My name is Ron Ebert, and I reside at Punalu`u, just mauka of the highway down there between Pahala and N5'alehu. And, I want to just say that I think that the CDP, the document is much more than just a quarter mile setback. I know that everybody is really keen on that, but there are things that have to do with public safety. One thing that has to do with public safety is a little subdivision that was pre in place before, and there is no ingress and egress and it's in the CDP. One thing that I wish was in the CDP but I think that they thought was being taken care of was Kawa Flats. Still floods after all these years, and it would just be an advocacy point for the State Highway Department. EXHIBIT C 10 But, I think if you look at the CDP overall, there's much more than the quarter mile setback. It has to do with many other things that people brought up over the period of time. More police, better public safety functions, and so, I urge you guys to vote in favor of it. Thank you. HENKEL: Thank you, Ron. Commissioners, do we have any questions for the testifiers? With that then, we should close public testimony if there's a motion. MIYASATO: I make a motion to close public testimony. IKEDA: Second. HENKEL: It's been moved by Commissioner Miyasato, seconded by Commissioner Ikeda to close public testimony. All in favor say, "aye?" COMMISSIONERS: Aye. HENKEL: Opposed? Public testimony is closed. Is there any discussion and is there a motion for action? Yes, Mr. Clarkson. CLARKSON: I just want a little bit more clarification as to the legal effect on, of this document on land use regulations. I saw a lot of what Ron said. Designate, guide, but all the language about conflicting with the General Plan, I just want to verify that my impression that this is a recommendation from the community of Ka`u to the County Council that in and of itself, unless it's in its entirety or in part, incorporated into the County Code or General Plan, has no legal effect. Is that a wrong impression or is that a correct impression? HENKEL: Would you like to respond, Ron? WHITMORE (from audience): I can but Amy can shut me up at any point if she thinks what I say is inappropriate. WHITMORE: Actually, Christian, do me a favor? There's a document there. It's Appendix like V-1. So, that actually was our starting point before we started this whole process, right? Let's start off being very clear about the authority of CDP's, right? And, so one of the first things we did is put together this Appen—which is now Appendix, I think, one of the CDP which is not, not adopted as part of the CDP. It's a supporting document. So, we looked carefully at what the General Plan says; what the charter says; any related State statute or County Code, and at the time, what we also had was a memo from the Director. And, he wrote this at the tail end of the first round of CDP's. So, this is from May of 2008. And, he was speaking, he was, he crafted this in response to several queries from the initial set of steering committees at the time. Right? `Cause they had the same question. It's like what does this really mean, right? What is the legal effect of a CDP? And, so, he drafted this memo trying to respond to that question, and we, for the Ka`u CDP, drew on language from the General Plan, EXHIBIT C 11 Charter, and this memo to clarify all that in this particular Appendix, which then was reflected in Section 2 of what is now the CDP, which is the authority section of the CDP. And, so, that's what we're working from, and part of what's important here is that the Director at that time clarified those different types of strategies that you can include in a CDP. The most important distinction being the one that I noted earlier—the distinction between those policies that are in effect controlling and those that are actions that require follow up. Action on the Council's and/or the Administration's part that are not mandated, right? And, so, it was that, that we were building on as our starting and working assumption for what a CDP can and cannot do. Now, as is the case with all land use applications decisions, there are all made on an application specific basis, right? And, so, how all of this is interpreted by the Director or the Planning Commission or Council, depending on the type of permit, we really can't speak to at this point. The Steering Committee and the community worked to be clear in the CDP to make it clear to those decision makers what (a) the goal was, what the intent was; and (b) how it thought tools in the planners' toolbox should be used in different circumstances, but was very careful at all times to never cross the line of basically assuming more authority than the CDP had. It was very, it's very differential to where authority lies in the regulatory framework, the Charter, General Plan, Code. But—but in some cases, knowing the nature of likely future development in Ka`u, try to be specific as possible so that those who are making a decision had no doubts in their mind what the intent and preference of the community is, right? But, at the end of the day, the decision makers are the decision makers, and they will ultimately make the call, and as you know, it's on a case-by-case, application -by -application basis, right? Is that fair? SELF: Deputy Corporation Counsel, Amy Self. I represent the Planning Department. So, I think in answer to your question, there is no way that you can develop any CDP or even amend the General Plan to prevent lawsuits from being filed. We still have a case in, at the Intermediate Court of Appeals concerning the Kona CDP. So, people will interpret it in different situations depending on what they want to gain for their client for permits, but the important thing to keep in mind is that the CDP is guidance for how they want future growth to occur in a particular district; whereas, the General Plan covers the entire Island. So, you know, we can't sit here and say—`cause like Ron said, it's on a case-by-case basis. It depends on the particular landowner that comes in for whatever permit they're applying for, and it depends on at that time, how the language is interpreted. And, if we get a lawsuit, our office will defend the Planning Department's decision. But, they did, you know, the thing that I looked at when I was reviewing the policy on the shoreline setback is that at least it's not a mandate. It's not mandatory language if you look at it. It's a—it's a guidance. So, that in and of itself to me would be defensible. So, I hope that helps. CLARKSON: Well, let me, let me just ask this then as a follow-up. Since the ultimate decision makers are judges, have any of them ever decided a case in favor, well, on the basis of the EXHIBIT C 12 language in the CDP, as opposed to the language in the General Plan? In other words, said to a decision maker, it be at the Planning Department or the County Council, that they erred by not deferring to the language in the CDP. Has that ever happened? SELF: There is a Supreme, Hawaii Supreme Court case. I think it'sis it the Breshia case in, but it's Maui County. Theirs is set up a little differently. Maui County adopted their CDP's by amending their General Plan so their CDP's are part of the General Plan. I can tell you that there is a Hawaii Supreme Court case. It says the General Plan—that the zoning has to be consistent with the General Plan. So, we have that. I'm going blank right now. There is a case regarding the Maui CDP, and I can't recall right now the specifics, but the court would look at that. I mean, this is going to be adopted by ordinance so what the Planning Department will be doing is when a permit application comes in for Ka`u area, they will be looking to see if it's consistent with the CDP, with the language of the CDP. And, they will also be looking to make sure that it's consistent with the General Plan. The language is like, for instance, let's take the General Plan. The General Plan has a lot of language describing what the direction they hope the growth will take, but when you get to the regulatory portion, that's actually the LUPAG Map, `cause that actually defines the use of different areas of the Island. So, that's why the Supreme Court said the zoning has to be consistent with the General Plan. So, if you, if you're trying to get a if you're trying to use your land for a particular use and your zoning does not match what's in the General Plan LUPAG Map, then you're going to have to try and get the General Plan LUPAG Map amended. So, there's a process for that. Where you have language in the CDP that is very strong language encouraging certain growth patterns, if it's not consistent with the General Plan, just like Ron said, you would have to go in for a General Plan amendment if you want to push that part of the CDP. So, it's not going to ever be like black and white. The law never is. But, we just have to put forth our best argument if we get challenged which is what we did with the Kona CDP, and we'll see how that turns out. We have no idea yet. HENKEL: Thank you, Amy. Any other questions or comments from the Commission? MIYASATO: Chair, I have a comment. HENKEL: Go ahead, Myles. MIYASATO: Yeah, you know, I'd just like to thank all of you for coming out. At least you folks had to drive this time. Thank you for coming out, and, you know, great work on the CDP. Thank you for your testimony. It gave us a lot of more insight on the development and what you folks went through to put this CDP together. You know, as far as the shoreline, you know, it seems to be a hot topic, and I can see how a lot of discussion or argument between the community members went about on that subject. And, you know, I think its healthy discussion that was, as was brought up on that topic. You know, I EXHIBIT C 13 was fortunate to have experienced that shoreline which is not readily accessible which is what one of the testifiers had brought up at the Ka`u meeting who I guess enjoyed surfing. But, you know, as he stated, not all the shoreline is accessible. You know, I've seen that King's Trail down on that shoreline. And, to see a path that's in the middle of a`a, smooth for miles. You just gotta imagine how many people walked that shoreline, and that shoreline is still sustainable in food resources. I know areas down between Kalowalo down to Galimba's property where we had our ranch. You have a carpet of limu kohu, yeah? You actually gotta step on it to pick it. Fish, salt—you can pick your own salt—you know, you can go down there and pick it and dry it. LobstersI not going tell you guys where the lobsters are but, they're walking on the reef. So, you know, yeah, your guys footprints of old fishing villages that you can see once existed have been all the way down to Kapua where that trial continues, you know, where's the Hawaiian Slide, an amazing structure, smooth rocks imprinted into the ground leading to Queen's Bath. Just so rich in cultural and food resources, you know. Beautiful place to be. And, I think John Cross put it the best where it's a document. It's a document of what the people of Ka`u want, yeah? That was very well put, and Chair, with that, I'd like to make a motion. HENKEL: Yes, go ahead. MIYASATO: Yeah, I move that a favorable recommendation be forwarded to the County Council on the Ka`u Community Development Plan based on the Planning Director's recommendations, recommended amendments, and findings which shall be adopted. IKEDA: I second. HENKEL: It's been moved by Commissioner Miyasato; seconded by Commissioner Ikeda. With that, we'll do discussion, feel free to comment, and a roll call vote. KAY: Thank you, Mr. Chair. Commissioner Miyasato? MIYASATO: Aye. KAY: Commissioner Ikeda? IKEDA: Aye. KAY: Commissioner Clarkson? CLARKSON: Aye. KAY: And, Chair Henkel. HENKEL: Aye. EXHIBIT C 14 KAY: Thank you, Mr. Chair. Motion carries four, nothing. [Applause in audience.] HENKEL: I'd like to, you know, second what Myles said about the work that the Steering Committee did and to all the Ka`u citizens that contributed. It's been awesome. It's grass roots democracy at its most, rewarding. The discussion ended at 10:32 a.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission EXHIBIT C 15