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HomeMy WebLinkAbout2017-10-30 Hearing Transcript - Amendments to PC Rule 9 (Joint Meeting)WINDWARD AND LEEWARD PLANNING COMMISSIONS COUNTY OF HAWAII HEARING TRANSCRIPT OCTOBER 30, 2017 The County of Hawaii Windward and Leeward Planning Commissions met in joint session at 9:35 a.m. on October 30, 2017, to review and take action on the proposed amendments to Planning Commission Rule No. 9 regarding the Special Management Area (SMA) in response to Act 153, which amended Chapter 205A, Hawaii Revised Statutes regarding the SMA. WINDWARD COMMISSIONERS PRESENT: Joseph Clarkson, Donn Dela Cruz, Gregory Henkel, Donald Ikeda, Myles Miyasato (to 2:30 p.m.), and Thomas Raffipiy. LEEWARD COMMISSIONERS PRESENT: Collin Kaholo, Scott Church, Perry Kealoha, Barbara Nobriga (to 2:30 p.m.), Oliver "Sonny" Shimaoka (to 2:30 p.m.), Nancy Carr Smith, and Keith F. Unger. ALSO PRESENT IN HILO: Michael Yee (Planning Director), Daryn Arai (Deputy Planning Director, to 2:00 p.m.), Amy Self (Deputy Corporation Counsel for the Planning Director), Malia Ho Hall (Deputy Corporation Counsel for the Windward and Leeward Planning Commissions), Jeff Darrow (Planning Program Manager), Maija Jackson (Planner), and Sarah Hata-Finley (Windward Commission Secretary). ALSO PRESENT IN KONA: Christian Kay (Planner), Shancy Watanabe (Planner), and Noriko Sauer (Leeward Commission Secretary). And approximately seven members from the public in attendance in Hilo, and ten members of the public in attendance in Kona. Review and action of proposed amendments to Planning Commission Rule No. 9 regarding the Special Management Area (SMA) in response to Act 153, which amended Chapter 205A, Hawaii Revised Statutes regarding the Special Management Area. These proposed amendments seek to exempt the State Division of Boating and Ocean from any SMA permit, amend the definition of single-family dwelling as an exempt class of action, and increase the valuation of improvements that could be considered exempt from the SMA requirements. Additional amendments offered include language regarding retroactive approvals and determinations and clarification of authorities, establishing a filing fee for SMA assessment applications and defining its standard acceptance, review and action timeframes, clarifying the short form assessment application process, and establishing a minimum distance necessary to qualify for a Director -issued waiver of the submission of a certified shoreline survey. HENKEL: Thank you. We've got some protocol to go through here. I'm going to go ahead and call this meeting of the Joint Commissions, the Windward and the Leeward Planning Commissions of Hawaii Island to order. EXHIBIT A The first order of business is going to be choose a chairman for the proceedings. Do you have any thoughts on this Kona? LINGER: Yes, I would like to since I ran the last Joint Commission, I'd like to defer to you to chair this meeting if you're okay with that. Since I chaired the last Joint Commission, I would defer to you to chair this one if you're okay with that. HENKEL: Thank you, Keith. I'm okay with that, and I would ask you to serve as Vice -Chair and conduct the Kona side of the meeting. I think it would be beneficial to alternate—the Kona discussion take place, the Hilo discussion take place—rather than going back and forth. And, you know, this is just for the clarity of communication. Is that okay with you to serve as Vice - Chair over there? LINGER: Yeah, that's fine with me and to clarify, so I'll go ahead when public testimony is happening. I'll call up members of the public, swear them in, and begin that process and then we can ask Commissioners then if there's any questions. I'll start that discussion. Is that what you want to do. HENKEL: Yeah, that's, that would be great. Also, I'd like to ask all the Commissioners on both sides to, you know, there's a button, a red button in front of you. When you press that, your mic's on, and then you have to depress it again to turn the mic off, so when you're not talking, make sure the mic's off because if there's over -talk, it can mess up the public record of this hearing. So, the first thing we're going to do is hear public testimony. How many people do you have signed up? LINGER: I haven't seen a list yet. Three people. HENKEL: We have three also. If it's all right with you, can we ask to limit the public testimony to five minutes? LINGER: That's fine. HENKEL: And, I'll ask you to swear them in and after you, Kona, and then we'll go on our side. LINGER: Okay, that's fine, and I'll go ahead and start then. HENKEL: Well, one more thing. Let's do an introduction of the people participating. Chair Henkel introduced the Windward Commissioners and staff; Vice Chair Unger introduced the Leeward Commissioners and staff. HENKEL: You can go ahead from your side, Keith. LINGER: Great, okay. So we'll go ahead and get started. Then I have three members of the public that wish to testify. We'll start the meeting. I'll just go in order. When you come up, I'll EXHIBIT A 2 swear you in. And if you could highlight your testimony. We'd like to limit it to five minutes. I think we have a lot on the agenda and we'd like to get to that. First, first testifier, Mike Matsukawa. Do you swear to tell the truth before the Planning Commission? MATSUKAWA: I do. UNGER: Please state your name and your area of residence. MATSUKAWA: My name is Mike Matsukawa. I live in Captain Cook, South Kona. I only got my written testimony in this morning. But essentially, I'm speaking to Section 9-9, which is proposed to be amended by delegating a substantial amount of your authority to the Planning Director. My concern is, and I think Randy Vitousek addressed this same issue, is that the Legislature gave the Commissions the authority to regulate and administer the SMA. When you delegate authority to a director or another agency official — it's necessary because there is so much work, processing applications, generating correspondence, typing out agendas, preparing for hearings like this one — but when you do so, you need to make sure, and this is a requirement of general administrative law, that you have some measurable standard by which you know what you are allowing someone else to do for you and what that person cannot do, and then some kind of reporting process so that you know the person is doing it correctly, and then some kind of review process that will be the report. What is happening now is when you delegate under Rule 9-9, there is no standard. If you read what it did allow, the last part of the sentence, "to administer, interpret, and enforce terms, scope and conditions set forth in Special Management Area Use Permits" — these are existing permits — "issued by the Commission." So let's say something was issued in 2014, and issue comes up about what does the term or condition required. Well, if it's the Planning Commission's permit, then logically the Commission ought to be the one to make the final decision as to what it means, how it should be applied, etc. As written, 9-9 is a wholesale delegation to the Planning Director. You will never know what he or she does. There is no review process. There is no reporting process. And I'm thinking, just from a legal standpoint I think it's deficient. From a political standpoint, it's also deficient, because you are giving away your authority and never hearing back on how it's used. A good example is on Maui. The Maui Planning Commission Rule understands that. These day-to-day things come up; what does this permit condition Number 12 mean? The Planning Commission rule on Maui says the Planning Director takes the information, makes an analysis, makes a recommendation, but ultimately reports to the Planning Commission. I don't know if it's on a quarterly basis or monthly basis. It comes to the Commission, goes on their agenda, they look at the interpretation of condition [inaudible]. If it's okay, it's a routine approval; if it's not okay, they hold, they hold off action on it. And I think that's what's missing in this proposal. The idea is to alleviate the Commission from many of the daily tasks that anyone runs into of what does Condition 8 mean, how many parking stalls did we intend to require, where is the beach access supposed to be, those kinds of conditions. Is a convenience store the same thing as a gas station? Those things come up on a daily basis. But then sometimes some very important issues also come up on a routine basis, something that was never foreseen. So should you delegate the responsibility to someone to decide when it was your permit? Thank you. UNGER: Thank you. If you hold on one minute, I will ask, if you come back up, I'm going to ask the Commissioners if they have any questions for you. We'll start on the, right here in Kona. EXHIBIT A 3 Commissioners, do you have any questions for the testifier? Very good. Thank you. And you do bring up some excellent points. And you are correct. As Planning Commissioners, both on the Windward and Leeward side, you are correct, we have final authority on all SMA permitting activities, not just SMA Major where we make the final decision, but you are right, the delegation process, which we are going to be talking more about today, is a really important process, and you are absolutely correct, there is no, there is no, there is no schedule, there is no, there is no format where the Planning Department ever does get back to the Commission. And so that definitely is something we are going to be addressing today. So, thank you. MATSUKAWA: I think, Mr. Chairman, the Maui rule is a good template, but it's very brief So if the Commission wishes to proceed further and come up with a more detailed – you don't want to get like a Federal agency and get a booklet full of rules and procedures, but I think if there is dialogue with the community, the developer industry, property owners, public interest people, I think we can work out a manageable format where the delegation does relieve you of some tasks but yet preserves your authority. UNGER: Great. Thank you. MATSUKAWA: Thank you. UNGER: Simmy McMichael. HENKEL: Excuse me, Vice Chair Unger? I'd like to ask the Windward Commission if they have any questions of Mr. Matsukawa. UNGER: I'm sorry. HENKEL: We have no questions. Thank you. Proceed. UNGER: You're, you're good. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? MCMICHAEL: Yes, I do. UNGER: Please state your name and where you live. MCMICHAEL: I'm Simmy McMichael. Kailua-Kona. UNGER: Thank you. MCMICHAEL: I had to quickly review the SMA, and I just made some pointers on what it is, and it was the recreational resources that we are concerned with, historic resources, scenic and open space, coastal ecosystem, economic uses, coastal hazards, managing development, and marine resources. These are all important and that's why they are special. The public opportunity in the SMA system is to review—they have you do an EA, environmental assessment, EIS, environmental impact statement, review the SMA permit, attend public EXHIBIT A 4 hearings, and that's really important to us, inquire with the Planning staff about additional public participation, an opportunity unique to their respective county. And I feel that if we don't get the opportunity, this will affect us because — I have brought some photos here — with your limit of 125,000, and now raising the limit to 500,000, and you want to say that the permitting right now is bottleneck and you want to speed it up is the reason. These photos will tell you we need to slow it down. The infrastructure, the resources, our water, everything is in disarray. In 2011, this has not been fixed. Kahalu`u Beach for one, it's a main tourist destination. There are 1,500 people per day going to the beach. It's 303(4) Impaired. There is a cesspool from Queen Kalama to Kahalu`u Beach. Two million gallons per day goes into the ocean. And you want to add all, not fix. This is wrong. So we need input even on the smallest development going in the SMA. And if your limit is 500,000 trying to reach that, it should be lowered, it should be lower than 125[, 000]. There's pictures I wanted to show you. [Ms. McMichael approached the Leeward Commissioners and showed them her collage of photographs.] I also learned one real factor into this matter, too, is that they always said that the shoreline wasn't moving very much, but when this cesspool broke, it showed that it moved 80 feet within 20 years. And that says a lot. Thank you. UNGER: Great. Thank you. Mark Van Pernis? HENKEL: Excuse me, Vice Chair Unger, we have a question from this side for Ms. McMichael. CLARKSON: Yes, since I was not able to see the photo that was shown to the Leeward Commissioners, could the testifier please describe briefly what's in the photo? Or could somebody from the staff hold it up to the video camera so we can see it? Thank you. MCMICHAEL: I have to explain first. Like the Kahalu`u shaft for one thing, it's the water at Kahalu`u Beach, it's high in salinity. And the reason is because of the water pumps. And last year I asked about the water pumps, and they said that there were two water pumps that broke and they could not tell me how long. I asked them, like one year, two years, they couldn't tell me. And then the other two broke in November. But this year they are telling us they broke this year. The salinity count proves here that it was broken many, many years ago. And it shows that in 1992 it started to climb all the way to 2016. And it's the ETA maximum level, it's way below. They have risen so high. It's not being fixed. There's constant fecal matters at Kahalu`u Beach. Constantly, they are posting bacteria signs, and it says swim at your own risk. I'm sorry but my kids, my grandkids, we don't go to the beach anymore. And to put people in there, snorkeling, and you have raw material going in there, it's pathetic. We have to fix it. I've went to every department I could, pleading with them, to please put in a sewer. The houses on the beach on the ocean front, they don't have room for the septic tanks. So, they'll never be fixed. We are willing to put in money to hook up to the sewer, but they are saying they don't have money, but yet they have money to put into the rail in Honolulu. The TAT taxes alone, of millions of dollars, and nothing has gone back to Kahalu`u Beach. It's the most used beach on this entire island for snorkeling. There are 75 public parking, 1,500 people per day. When this sewer broke EXHIBIT A 5 HALL: Sorry, Ms. McMichael. This is Malia Hall, Corporation Counsel. I just, could you describe, is that what's actually in the photos are the pictures of broken pumps? That's what the Commissioner's question is MCMICHAEL: Everything, and explanation of each, each item. HALL: Yeah, can you tell me what it actually, the picture, for the record we need to know like what the picture is of So is it of the pumps or is it of the shoreline? Like that kind of description, please? Thank you. MCMICHAEL: Okay, it shows the Kahalu`u shaft. There is the graph. There is the caution sign of the bacteria. There is a front page of the West Hawaii Today. And there is the close sign beach. There is the pavilion falling apart into the ocean, and it's the erosion that's never been fixed. There's the sewer, actually the sewer is open. It's in the ocean, and they let it go for days, just open. There's still a cesspool. Here's a barbecue, been broke since 2011. There's the pavilion, one of, there's two, one is closed, completely closed, and due to erosion. And then there's all the historic rock walls, it's all falling apart. There's the Menehune Rock Wall that's [inaudible] of the day. It's not fixed; the next big storm, it's going to wipe out Kahalu`u Beach. And it shows that the public parking here, it's totally flooded. And there is parking here, parking illegally all along Alii Drive at Kahalu`u. They're signs that say no parking, so there is no pedestrian walking space for anyone, and it's really dangerous when you walk with your boards, surfboards, anything with kids, you have to go in and out the car to duck them. It's very hazardous for everybody. LINGER: Great, thank you. So the MCMICHAEL: And it's here. LINGER: so a hundred percent of the pictures are of Kahalu`u Bay in Keauhou Kona. So, thank you. HENKEL: Thank you. Does that answer your question, Commissioner Clarkson? Okay, thank you. We're ready here. LINGER: Thank you. Do you swear or affirm to tell the truth before the Planning Commission? VAN PERNIS: [Inaudible affirmative response.] LINGER: Please state your name and where you reside. VAN PERNIS: I'm Mark Van Pernis. I reside in North Kona, at Makalei. I learned of this proceeding only yesterday. It's a very important procedure, and I would suggest that the minimal notice requirements be expanded upon in this case, that you continue this hearing, and a press release to explain all of the issues that are arising. I have seen the suggested recommendations of the Planning Director for the first time this morning. I'm not an ignorant person. The minimum requirements are, should be exceeded in this case. EXHIBIT A 6 This is a naked power grab by the Planning Commission, excuse me, by the Planning Director at the public's expense and at your expense since you represent the public. Remember that, you represent the public, not developers or the government. Now, I have submitted written testimony, and I read the newspaper article yesterday. I assume you have it. I gave it to the staff to distribute, and thus, I will not repeat that. I'll ask you to read. Having seen these suggested changes for the first time and being an experienced attorney with development experience, I point out the following to you in the Planning Director's submittal. For instance, the addition, expansion of no SMA except for 7,500 square feet development, you will see lots of applications for 7,499 square feet, then change orders after initial approval. There is no provision for, if the initial application is expanded upon, there is no initial or any sort of enforcement or review process. So there will be, I guarantee you, there will be that. I have never been associated with a development that do not involve a change order on the shoreline. You are advocating your authority for the public. So too would Section 2, 499,000 will be the cost, before contractor or after contractors, of every shoreline development, then there will be change orders. Again, I point out I have never been associated with a shoreline development that involved change orders that up the price, sometimes doubling. So this is just a methodology for the developer or the homeowner or whomever to circumvent the SMA policy. Now, the Planning Department knows this. They're not stupid. And I don't think you should be taken for fools when this has no provision for enforcement or review when the limits are exceeded. Now, I'm also concerned about the provision for the harbors and such. Shouldn't the public have the right to have some input on this? Why are you taking it away and giving it to a politically appointed person? Also of great concern to me is the political appointee's ability to waive the Shoreline Management Area shoreline survey. This is a naked land grab. We all know that the shorelines change. We all know that setbacks are determined from the shoreline. So they will determine setbacks through their improvements based on outdated, incorrect shoreline surveys. The improvements will be constructed. Then, if there was another shoreline survey, oh, we're too close to the water but, too bad, we got our approvals. And the public loses that part of the shoreline. Shoreline surveys and shoreline locations have been an issue, a public issue, for decades here and the on the other islands. Why are you basically allowing developers to determine where there, say work of their improvements are going to be, and then thereafter maybe find out they're too close? They will be too close, if they have an old survey. But, it's already done. So these proposed changes, I suggest, have been consciously written to defeat the public's input in shorelines and shoreline development. And, you are being asked to approve them when there is no problem with the shoreline survey and shoreline improvement process as existing now. These should be rewritten to accommodate all of these things at a minimum. Veto— LINGER: Please, Mr. Van Pernis, if you could summarize your comment, please. EXHIBIT A 7 VAN PERNIS: Yes, I'll conclude. The delays are at the Planning Department, not in the public hearings. Public hearings are an integral important right as a public. They should not be taken away and given to a political appointee. Thank you. UNGER: Thank you. Any questions, Commissioners on the Leeward side? Windward side? HENKEL: No. UNGER: Thank you. Thank you, Mr. Van Pernis. Randy Vitousek. Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? VITOUSEK: Yes. UNGER: Please state your name and where you reside. VITOUSEK: I'm Randy Vitousek I reside in Kamuela, Hawaii. UNGER: Thank you. VITOUSEK: So I'm here to testify as an individual; I'm not here representing a client which is a nice change. And I, you know, just wanted to give some feedback to the Planning Commissions because, you know, I've been involved in SMA issues here on the Big Island for a long time, and I just feel that there's things that can be done in order to make it more efficient and effective and to actually accomplish what the Legislature intended when it enacted the Chapter 205A. And, you know, just by way of background, you know, what's important here is generally under the law, the zoning power of the County comes from the State Legislature, in our case under Hawaii Revised Statutes Chapter 46, and the Legislature delegates zoning power to the County Council that then creates departments and assigns different responsibilities to those departments. The departments then create rules by which they administer the various aspects of land use control that are delegated to the counties by the Legislature. Now, under the Special Management Areas, it's an entirely different structure. The Legislature in Chapter 205A delegated responsibility for managing the Special Management Areas within the counties of Kauai, Maui, and Hawaii to the planning commissions. In other words, it's a direct delegation of legislative authority from the Legislature to the planning commissions, and it bypassed the County Council and the Hawaii County Code, and it's purely a matter of legislative authority passing from the State to the planning commission. And then in that authority the Legislature empowered the planning commission to pass rules in order to govern the Special Management Area, and said that under those rules it has the, the commission has the power to delegate some responsibility for administration to the planning department. And so, what we're here today to do is look at how the Commission is going to exercise the authority granted to it by the State Legislature to administer the Special Management Areas, and particularly, passing rules by which the Special Management Areas are administered, and as a subset of that, delegating certain authority for administration to the Planning Department. And so, what I wanted to start with, and what I started my written testimony with, is that before you can really look at expanding or modifying the authority, the responsibility that you delegate to the Planning Department, you EXHIBIT A should take a very careful look at how the Department exercises the authority that you've given. And I'm not saying it's bad, I'm not saying they are doing things wrong, but I'm saying part of your responsibility as the Commission, `cause you are ultimately responsible for the administration of Chapter 205A. And you can give some authority to the Planning Department, but you still have the responsibility. And, so it's like any situation where you delegate. If you're an employer, you delegate responsibility to your employees; if you're a parent, you delegate your responsibility to your kids. You want to make sure that they exercise the authority that you give them in a manner that you think is the right way to administer the rule or to perform the task. And, I'm not saying they're wrong. I think I have some issues with some parts of it. But I think that before you continue to entrust them with your duty, you know, with your responsibility, you should take a careful look at how they performed the responsibilities you've given them in the past and how they are going to perform the further responsibilities that you give them in the future. And, that's sort of what Mr. Matsukawa was saying; it's the same, same kind of thing. But, I just think that the Commission has to say that, you know, as individual, as individual commissioners, you are responsible for the administration of the Special Management Area. You have to feel, if you're doing it, that it's being done right, or if somebody else is doing it on your behalf, that it's done right. And, you know, I think that that's going to take some careful inquiry. So that's, that's kind of my fundamental starting point both retrospectively and prospectively. I see in the Department's response to my comments they say, yeah, Mr. Vitousek makes some good points about how things were done in the past, but we're going to start doing things different now. And, you know, to me, you know, how you've done things in the past is a pretty good indicator of how you're going to do things in the future. And so I would look back and forward, you know, I would make sure that—because looking back is going to help you design a kind of controls and feedback and information flow that's going to help you ensure that going forward, things are going to be done right. So that's my overall point. My second point is that, you know, the intent of the law, 205A, was to say that there are certain types of uses and activities that are covered by the law and there are certain types that are not. In other words, the Legislature said we are going to define, we are going to say permits, SMA permits are required for all uses in the Special Management Area, all development in the Special Management Area requires a permit. Then they turn around and say we are going to define development, and they are going to say that development is defined in a certain way to include certain things, and then they are going to say there are also these areas that are exempt from the definition of development, and important ones include subdivision, you know, of some public facilities and then one I'm involved in a lot, which is single-family residence. And the, Chapter 205A-22 defines development to exclude single-family residences. There is a catchall phrase at the end of 22 to say that if the proposed use has substantial, significant environmental effects, that they can require a permit. And so, if you are a homeowner and you want to remodel your house, you are required to submit an SMA Assessment under your Rule 9-10, which says what you plan to do, and the Department looks at that and decides whether or not it fits as an exemption. But what happens in reality is, you know, they require a number of different components to an Assessment. It's very, very similar to an SMA application itself. You know, in other words, you have to submit an Assessment to the Department that says here is what we plan to do. Here's what the impacts will be, and then the Department decides whether or not it's exempt. Very often they take a long time to decide whether or not it's exempt, even though if you look at it, it's obvious it's a single-family residence, you know, you are talking about EXHIBIT A 9 modifying, reconstructing a single-family residence. But you still have to do this extended form. You get it, you know, you get it sent back to you, saying, well, this is deficient in five respects because of, you know, you don't have a shoreline survey, because it looks like there's two lots instead of one. In other words, what happens as a practical matter is, rather than looking at them and saying, yeah, it's a single-family residence, they look at it and say, well, no, you have to, your application is deficient `cause you haven't done this, you haven't done that, you haven't done that, send it back to you, you have to revise it, resubmit it, 35 days later, oh, no, you haven't done this, you haven't done that, sometimes the same things because a new planner is doing it, sometimes different things. And, you know, you end up 90, 120 days down the road before they even decide whether your proposed renovations to the single-family residence are exempt or not. UNGER: Please summarize, Mr. Vitousek. VITOUSEK: Sure. So my main point, my main concern is that, is that the Department, I'm sorry, that the Commission remain involved in the process. In other words, that the Commission hold hearings to evaluate how the law has been implemented, that the Commission follow up on these issues, the Commission not delegate authority without making sure that the authority is properly exercised, and that all appeals from decisions of the Director relative to the Special Management Areas come to the Commission, `cause right now they go to the Board of Appeals, and I think that that's one way of the Commission keeping a good handle on whether the, you know, whether the Department is actually exercising the discretion in a manner that's consistent with the law. UNGER: Thank you. Commissioners, any questions? Windward Commissioners? Thank you. Janice Palma Glenne. HENKEL: Excuse me UNGER: Please raise your right hand. HENKEL: Excuse me UNGER: Do you swear or affirm to tell the truth before the Planning Commission? PALMA GLENNIE: Yes, I do. UNGER: Please state your name and your area of residence. PALMA GLENNIE: My name is Janice Palma Glenne and I live in Keauhou, Hawaii. UNGER: Thank you. PALMA GLENNIE: This is a very critical issue, as you've heard, and I appreciate being able to testify very briefly about it. I'm asking Planning Commissioners to please allow more time and public input into this issue, which doesn't seem to be just about bringing our County into EXHIBIT A 10 conformance with State law, but it also appears to restrict the County from making laws, which are more appropriate as per the desire of this County's residents to protect their natural and cultural and societal assets. Any legislation or rule that limits rather than increase this public input in this way should be avoided, and in this case, denied or at minimum revisited and repaired to take that and other issues raised here today into consideration. Mahalo for your time and for consideration into not making a rash decision today. UNGER: Thank you. Commissioners, any questions? Windward Commissioners? HENKEL: No questions, but, Mr. Unger, do you have, you said three testifiers. Do you have more after this one? UNGER: Yes, I have one more. We had some late sign-ups, so I have one more testifier. HENKEL: Thank you. UNGER: Benjamin — and I may need some help with the last name — Gen? Please raise your right hand. Do you swear or affirm to tell the truth before the Planning Commission? COHN: Yes, sir. UNGER: Thank you. Please state your name and your area of residence. COHN: My name is Benjamin Cohn, and I live in Kealakekua. UNGER: Thank you. COHN: I'm in support of the public being included in the process of the shoreline, Planning Commission events, and what's going on in the process. I just came to say that pretty much. So, hopefully, the public stays included in the process. UNGER: Great, thank you. Greg, that's all we have signed up here to testify. HENKEL: Thank you. We have three people signed up to testify. We'll start with Cory Harden. I think she's outside right now. Susan Forbes, are you ready? Please raise your right hand. Do you affirm to tell the truth in this matter before the Planning Commissions? FORBES: Yes, I do. HENKEL: Please state your name and proceed. You have five minutes. Thank you. FORBES: Okay. Hi, my name is Susan Forbes. I live in Hakalau and I'm the president of the Hakalau Point Preservation Association. I had previously submitted written testimony, and there has been a response to that testimony that I believe you also have, so I'm not going to re -read that. I do have some additional comments, however. I appreciate that last month, or maybe the end of August, there was an informational briefing on coastal zone management done by the EXHIBIT A 11 Office of State Planning, and that was very, very helpful. And as I was thinking about that, I went back to the objectives and policies within the law related to Hawai`i's Coastal Zone Management Law, and there are two comments that I have. One related to managing development. The program is supposed to improve the development review process, communication, and public participation in the management of coastal zone resources and hazards. Changing the threshold for an SMA Major Permit actually reduces public participation, and I think we've heard that before in some of the other testimony. The other point here is related to economic uses. The program is to concentrate coastal zone dependent development in appropriate areas. Reliance on a threshold without any public scrutiny of the issue of coastal dependence, that may get lost in the shuffle and that's an issue that I'm concerned about. Then I thought further about the article that was in yesterday's Hawaii Tribune Herald. It reminded me of the broader issues at stake related to the environment. In most parts of this island, we are lacking infrastructure, especially sewage and wastewater and even access to water other than catchment systems. There are also issues of fragile cliffs, which we see particularly along the Hamakua coast, contamination leftover from sugar plantation practices, and the juxtaposition of these contaminated properties to endangered species and protected habitats, or critical habitats. In consideration of the potential harm to our coastal zones, I urge the Commission to lean towards greater environmental protection; that is, requiring SMA Major Permits providing greater environmental scrutiny and enabling public input. SMA Minor Permits currently provide for neither. I'd like to point out that the County can be more restrictive toward development than required by State law. The Hawaii Supreme Court held that with a few exceptions local governments are free to become more protective of the coastal lands than the Coastal Zone Management Act provides. In light of these environmental issues and the objectives of the Coastal Zone Management Law, the Hakalau Point Preservation Association opposes increasing the threshold for SMA Major Permits from 125,000 to 500,000. Thank you. HENKEL: Thank you, Ms. Forbes. Any questions from the Windward Commissioners? Are there questions from the Leeward? Thank you. Scott Wallace is next. Do you affirm to tell the truth on this matter before the Windward and Leeward Planning Commissions? WALLACE: Yes, I do. HENKEL: Thank you. Sit down, state your name and where you are from. WALLACE: [Inaudible.] HENKEL: Excuse me, check and see if you mic's on. WALLACE: I'll repeat that. My name is Scott Wallace. I'm a resident of Hakalau, registered voter in Hakalau, and I speak today in opposition to amendments to Rule 9. I have three reasons that I think you should look at why this should be opposed and not adopted. The first is a legal argument and that is that the rule change was not properly or legally initiated. The rules are really clear in HRS 205A-22 that rule changes must be initiated by a person and not the department. And in this case this rule change was initiated by the Planning Director, Mr. Yee. This argument was made in a prior testimony and responded to in Mr. Yee's response, and I'll EXHIBIT A 12 quote his response saying, "The [Joint] Commission may want to add a provision to Rule 2 in the future to clearly state that the Director may initiate amendments ...." So there is a very large legal issue here that rule change was not properly initiated; and in fact, the rule change was initiated by the Department head and not a person. This is important because procedure has to be followed correctly. We all know what happened in the TMT case with procedure not being followed correctly. What happens here is if this Planning Commission forward these rule changes, the Board of Appeals will then hear the matter on appeal, and then if they go ahead and affirm the Planning Commission, it will simply wind up in Circuit Court. So you're back to a whole legal [inaudible], so to speak, because the rules weren't being followed. And, I would further state that the rules are for the benefit of the public and for the Department, and if anybody should understand the rules, it should be the people who are writing the rules, but the rules in this case should be initiated by a member of the public and not the Department. The second reason that I'd like to talk about why this rule change should not be adopted is based upon the fact that there is no legal requirements that the County of Hawaii has to follow State law when it comes to coastal resources. It's pretty clear. Other testifiers have made that point. I don't think it's a debatable issue. I think the important thing that has to be looked at is why on the County of Hawaii do we need to keep this threshold at a 125,000. I'm no stranger to SMA permit assessments, SMAs and EAs. I processed those permits on every island in Hawaii for a movie theater business I was formerly associated with, called Wallace Theaters, on every island except Niihau, which doesn't have movie theaters. And, in that case, I had no issue in terms of the number of days it takes to get a permit. In fact, my experience with over 50 to 60 these permits on the Island of Oahu, that Hawaii County is one of the faster permitting authorities based upon the current rules, particularly compared to the County of Hawaii [sic] or Maui. But the reality here on the Big Island, when I look at all the projects, is that we don't have any infrastructure. We don't have any wide scale sewage system, public sewage system, we have of course cesspools and septic tanks. In addition, we have a lot of catchment water on the Big Island, that on the other islands they have county water. So all this infrastructure makes it that much more critical to look at planning and issues with respect to shoreline management, because those effect, affect the coastal resources, affect the ocean, which you don't have on the other islands with a larger threshold. So, it's important that we look at the County of Hawaii being fundamentally different than Oahu or Maui in terms of needing that lower threshold. And finally, the third point is that these rule changes obviously reduce the transparency on development. Today, there's nobody speaking in favor of these rule changes except the Department. I'm the sixth or seventh testifier today. There's nobody here supporting making these rules changes. What the public wants and what the public deserves is transparency, and the public also deserves input, and by raising the amount from 125 to 500 thousand dollars, you provide an opportunity for the public not to be heard on these kind of matters. So, in conclusion, for these three reasons, I believe that these rule changes should not be adopted. Thank you for your time. HENKEL: Thank you, Mr. Wallace. Any questions from Windward Commissioners? Leeward? Thank you, you may be seated. Is there anybody else signed up or that would like to EXHIBIT A 13 testify publicly on either side? Then I would look for a motion to close the public testimony portion of the hearing. UNGER: I make a motion to close public hearing. This is Keith Unger in Kona. DELA CRUZ: Second. HENKEL: It's been moved by Commissioner Unger and seconded by Commissioner Dela Cruz to close public testimony. All in favor, say aye. COMMISSIONERS: Aye. HENKEL: Any oppose? Then public testimony is closed. I'd like to have a five-minute break before we continue with presentation. Is that okay with everybody? Then, we'll start again at 10:30. Chair Henkel called a recess at 10:26 a.m., and the meeting was reconvened at 10:34 a.m. HENKEL: Chair Unger? Are you ready to go? And, Leeward? UNGER: Yes, we're ready here. HENKEL: Okay, I understand. You guys are going to have to move to a position where you can see the presentation so we're not going to, you're not going to be visible to us up at your chairs during the presentation. And, some of our people might want to move, too, to get a better view. So, Jeff Darrow is going to do the presentation, and then we'll follow with questions first from Leeward and then from Windward to Maija or Jeff. So, anytime you're ready, Jeff DARROW: Thank you, Mr. Chairman. Thank you members of the Joint Planning Commission. I just want to give our appreciation for your taking time out of your busy schedules to be able to join us this Monday morning and try to work and improve our rules for Rule 9 of the Planning Commission Rules. Before I begin, I would like our Corporation Counsel to address the matter that was raised regarding the authority of initiating the rule change today, and if Malia could address that briefly that would be good before I go on. HALL: Hi, sorry, I just lost Internet connection. I was looking up the—do you know what the County Charter section? Anyways, she's going to find it for me, but the County Charter section addresses the fact that the Planning Director has the authority to advise the Commission. Thank you—yes, so under Chapter 7, Planning Department Section 6-7.1 and then it's actually 6-7.2(b)(1). "The director shall be the chief planning officer of the county and the administrative head of the department and shall... advise the mayor, the windward planning commission, the leeward planning commission, and the council on all planning and land use matters." EXHIBIT A 14 And, then if you look at the joint commission rules, it refers to the Commission has the power to initiate rule-making proceedings. Thus, the Planning Director, in many aspects, is representing the Commission in different levels. Therefore, he makes these recommendations because the Planning Department, as the head of the Planning Department, he is the one, most of the time, having to administer these rules as people come in for these permits. Therefore, I think the Planning Commission still, of course, has the ultimate authority. So, if you guys want to motion now to take these rules under advisement, and to look at these amendments here today, then we can move forward. But, if you guys feel like it was, if you feel like it was improperly initiated, then we'll have to look at that rule again and then re-initiate the proceedings. But, again, it falls under your authority to initiate the proceedings. As we are within the proceeding now, you can choose to continue. HENKEL: Thank you, Corp. Counsel. Is there any discussion on that from this side? From the Windward? Commissioner Ikeda? IKEDA: I do, I'd like to revisit that section because as a planning commissioner, I have a hard time giving up my authority, and so, I would like to get a little more clarification. HALL: Clarification on what? Sorry. IKEDA: Our authority and so forth like you had just mentioned that we have the final authority and the—it seems kind of, from what I gathered reading the rule changes and so forth, I've, I have, I'm getting a mixed message like. And, so I kind of agree with the public what they're saying about the Commissioners giving up the authority. HALL: Okay, do you mean just the authority initiating the proceeding or the authority that's addressed actually in the rule amendment. IKEDA: In the amendment. HALL: Okay. Yeah, I mean, the presentation will address that, but I guess as just a brief overview of it, the amendment I believe you're speaking of is actually just the clarification of powers the Planning Director already has, and they run into these questions and such from other people—I don't, I'm sorry—that question his authority. So, this is just kind of re -explaining it, but it actually is if you read the rule, all, like the assessment and that kind of stuff is all within the rule already. I think the only addition is the interpret portion. But, the Planning Director must have the power to interpret in order to give you guys a recommendation, and then you guys still have the ultimate authority at the end of the day. And, that's also why it comes back to you at the end. Like, that's why I think that we went to initiate the appeal process—that would actually come to you guys as well so that you guys would see that. Does that answer your question? IKEDA: Not quite because— EXHIBIT A 15 HALL: I think they'll go through it more in depth. I'm just giving you the very broad, but they'll go through each one, so like each component of it, so like the assessment portion and all that kind of stuff So, if you'd like to wait and hear their presentation, then they'll be much more thorough then I was just now. Sorry. IKEDA: Okay, thank you. HENKEL: Commissioner Clarkson? CLARKSON: Yes, to remove any doubt about the procedural capability or legality of this meeting, I would like to move that the Joint Planning Commission take up the issue of revisions to our rules, particularly Rule 9 and call for a vote on that matter before, by the Joint Commission. HENKEL: So, there's a motion on the table. Would you restate it, please? Restate the motion. CLARKSON: That the Joint Windward and Planning [sic] Commission take up the issue of considering amendments to our rules. HENKEL: Now, I apologize. This is—this is new territory for us here, and I see that the Leeward Commission is, are not up at their microphones, and they should be. KAY: Yes, Mr. Chair. We're going to have them move back up to the, to their seats while we have this discussion. HENKEL: Okay, and then KAY: Give us two minutes, please. HENKEL: And, then once the Leeward Commissioners are up there, we'll be looking for a second to that motion. KAY: Thank you, Mr. Chair. LINGER: Mr. Chair Henkel? This is Keith. Before we get into a motion, can I just try to clarify what we're doing? HENKEL: Yes, go ahead. LINGER: Apparently, the Planning Director has initiated rule changes and that's what we're reviewing today. Basically, these have come from the Planning Director, so the issue is does the Planning Director have the authority to initiate rule changes under our rules. And, so I question to Corporation Counsel specifically is if you're looking at Rules of Practice and Procedures, County of Hawaii Planning Commission, on end, when they say a person can initiated changes to the rules, the definition here of a person means any individual, partnership, firm, association, trust, state, corporation, or other legal entity of, of any character other than an agency. EXHIBIT A 16 So, I'm just wondering. I guess we're going to the legal question here. The Planning Department is an agency. These, these recommendations are coming from the Planning Director. Therefore, is this a person under this definition? HENKEL: Ah yes, thank you, Mr. Unger. Mr. Clarkson? CLARKSON: Hence the reason for my motion to obviate all of the confusion about whether this Commission can consider these rule changes upon the initiation of the Director, I am proposing that the Council [sic] initiate consideration of the rule change. I mean, the Commissions, the Joint Commission initiate consideration of this rule change. And, I humbly ask for a second. HENKEL: Do you understand the motion, Leeward Commission? SHIMAOKA: I did not. This is Commissioner Shimaoka. HALL: So, Rule 2sorry, this is Malia Hall—Rule 2.1 says the Joint Commission may at any time initiate proceedings for the adoption, amendment, repeal of any rule of the Commissions and procedures to be followed in rulemaking shall be set forth in these rules. Therefore, Commissioner Clarkson is saying rather than get into the legal argument of is the Director a person as stated in these rules or not, the Planning Commission can use their authority to now initiate these amendments. Not saying that you guys are going to approve all of them. You still have the authority to approve or not approve certain amendments. We will go through each one. So, this is not a motion to approve anything. This is just a motion to initiate and consider these amendments as put before you by the Planning Department. HENKEL: Mr. Darrow, the planner, has a comment. DARROW: Thank you, Mr. Chair. Also, for clarification, the matter was agendized as "review and action of the proposed amendments to Planning Commission Rule." It wasn't agendized as a Planning Director initiated rule change. The only—when the Background and Recommendation came out, that had as a title, "Planning Director Initiated." That's normally how we present these rule changes to the Commission. That process may need to change and be clearer, but as far as this process being agendized, it was agendized correctly. HENKEL: Thank you. UNGER: So, it's like there's a slight conflict in these terms. One, we have a person, any person can initiate a rule change, and it's very specific that an agency cannot initiate a rule change, and then additionally, that was just pointed out, the Commission can initiate a rule change at any time regardless of the source. Is that correct? HALL: Yes, that's correct. HENKEL: Then we EXHIBIT A 17 CLARKSON: Hence, my motion. HENKEL: We still have a motion on the table. UNGER: Can you repeat the motion? CLARKSON: I move that the Joint Commission consider changes to Rule 9. HENKEL: Is there a second? MIYASATO: I second. HENKEL: It's been moved and seconded that the Joint Commission consider changes to Rule 9. Discussion? Let's go first with Leeward and then when, if you guys have no more questions or comments, then we'll, then Windward will take over. UNGER: I would like to proceed. I mean, we're here. And, I'd at least like to hear the presentation from the Planning Department whether we make a ruling or not. Perhaps we could revisit that, a final ruling to make actual changes that could be another point of discussion, but I'd at least like to hear the Planning Commission's presentation. HENKEL: Ok, thank you. CARR SMITH: Vice Chair Unger? Can I make a comment please, Chair Henkel? Nancy Carr Smith. HENKEL: Yes, go ahead. CARR SMITH: Thank you. I understandI don't understand, butI understand that this was agendized correctly and at the same time, the document that we have in front of us that is the Background and Recommendation, it does state in the first paragraph the Planning Director's initiating the amendments, da da da da da. I don't quite understand what the difference is between this and when we reviewed amendments to the PUD rules recently or earlier this year. Can anyone explain that to me? HALL: There really isn't a different. It's just, I mean our normal way of doing things is having the Planning Director initiate. I think that's historically how it's been done in the Planning Department. But, now, it's just become an issue of the wording. So, that's the motion on the table just to make sure it's clear. But, yes, in the past, that's how it's been done. The Planning Director has initiated the rule changes with the PUD as well. CARR SMITH: Okay. Thank you. I support the motion. I just wasn't clear about the conflicting language. Thank you. CHURCH: This is Commissioner Church. I it's such a fine line. The definition of a person. If the Director had simply forwarded this as advice from counsel to the Planning Commission, I EXHIBIT A 18 don't [inaudible] that effect, we wouldn't have this issue to contend with. I remain concerned by people who would object to whatever it is that we decide to do on the basis of fine line procedure. So, I'm supportive of the motion but would like to go through the arguments forward of proposal with regard to advice and counsel from the Planning Director so to speak, but I do remain somewhat concerned procedurally. HENKEL: Any other comments? None from Windward. None from Leeward. Then, at this point, we have to deal with this motion, and we could act on it; it could be withdrawn; or we could table it until after the presentation which I think is what Vice Chair Unger possibly suggested, but we need to act on it somehow, so if it's HALL: The motion on the floor is just a consideration so you may as well— SHIMAOKA: —This is Commissioner Shimaoka. I agree with Vice -Chair Unger that maybe what we should do is listen to the presentation by the Planning Department. I mean, they went through the trouble of preparing it and then we can make a better assessment after we listen to the presentation. Thank you. HENKEL: Commissioner Clarkson, you have a comment? CLARKSON: Yes, I would just like to make clear that my motion was only to remove the consideration of who initiated our consideration today by clearly asking the Joint Commission to initiate it via approval of my motion. Imy motion is not substantive in any way in our consideration of these proposed amendments, but merely to remove any shadow of impropriety over how we convened this meeting to review these proposed changes. Thank you. HENKEL: Then, I would ask for action on the motion starting with Leeward. Would you do the roll call vote? I'm sorry, Maija has a comment. JACKSON: Chair Henkel, I can take the voice vote for both Commissions. HENKEL: Okay, Maija Jackson will be taking the voice vote here. JACKSON: Okay, Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? EXHIBIT A 19 IKEDA: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: And, Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: And, Commissioner Unger? UNGER: Aye. JACKSON: And, Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion passes. HENKEL: Thank you. Now, we'll proceed with Jeff Darrow and the presentation. DARROW: Thank you, Mr. Chairman. Thank you, members of the Joint Planning Commission. If I can direct your attention to our presentation this morning. Again, we are here for review and action of the proposed amendments EXHIBIT A 20 HENKEL: —Jeff, excuse me. Let's let the Leeward guys get in position to see your presentation and then just give them a minute, please. DARROW: I just want to say thank you for your patience. This is, this is a test case to see if we can actually be able to do this Joint Commission in the different Council Chambers. So, thank you for your patience as we try to resolve the issues. We're learning of a number of issues that we're going to have to try to address. One of them obviously being the PowerPoint as well as being able to effectively get communication back and forth of submittals that come in on the different sides. So, as we go through this process, we'll see if this works or if we're going to have to just meet together in one location. Thank you. They all good? Okay. I'll begin the presentation again. This is review and action of our proposed amendments to Planning Commission Rule 9 regarding the Special Management Area. The proposed amendments to Planning Commission Rule 9 include changes made by Act 153, which amended Chapter 176 and Chapter 205A in the Hawaii Revised Statutes, regarding the Special Management Area. The proposed amendments to Rule 9 relating to Act 153 seek to number one, exempt the State Department of Boating and Ocean Recreational [sic] from any SMA permit. Number two, to amend the definition of single-family dwelling as an exempt class of action. And, number three, increase the valuation of improvements that could be considered for an SMA Minor Permit versus requiring an SMA Use Permit. Additional changes we'll be looking at that are proposed to Rule 9 include the following. Addition, added language for retroactive approvals and determinations. Add clarification to the authority section. Amend the SMA assessment section to include a filing fee for the SMA assessment application. A standard review and acceptance time as well as add additional time to act on the assessment application, and amend the short form assessment application section. Lastly, there is a proposal to amend the SMA Use Permit section that currentlyoh, including the assessment section—that currently allows the Planning Director to waive the submittal of a shoreline survey for a SMA Use Permit application and assessment application when the parcel abuts the shoreline. I'd like to just interject here. In preparation of the rules, there are times that we miss a particular section that we're trying to amend. Normally, there are several areas in a section in the rule that we try to amend at the same time. One of the sections that we miss through this was under the assessment application regarding this waiver. It would be the identical language that we're requesting in the SMA Use Permit section, and we'll address that as we get to it. The proposed amendments to Planning Commission Rule 9 resulting from changes made by Act 153, which amended Chapter 205A-22, HRS, by defining that "development" does not include the following. Construction or reconstruction of a single-family residence that is less than seven hundred [sic] seven thousand five hundred square feet of floor area and is [sic -is not] EXHIBIT A 21 part of a larger development. Prior to Act 153, the, this definition that did not include development for a single-family dwelling, was, did not include that floor area of seventy-five [sic], seven thousand five hundred square feet. So, any development, any single-family dwelling no matter how large would be exempt. Okay, the State law or Act 153 changed that to put a threshold. This language is being added or proposed for Rule 9-4(2)(A) which is the definitions. Prior to this amendment, as mentioned, all single-family dwellings no matter how large were considered exempt and would not require an SMA permit. The proposed amendments to Planning Commission rule resulting from changes made to Act 153 continued, also this amendment places a floor area restriction, as we mentioned, less than 7,500 square feet. The amendment is silent regarding the definition of floor area, and so the Planning Department has provided the Commission a clarifying definition to Rule 9-4(2)(A) which is as follows. Floor area shall be the total area of all floors of a building associated with the single-family residence, including a basement and accessory structures measured along the exterior walls of such buildings. The floor area of a building or buildings, or portion thereof, not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the floor or roofor, I'm sorry—the roof or floor above. If I could interject right here, I wanted to mention that as we're going through the slides, rather than wait till the end of the presentation and then have to go on back, if there are questions, if it might be a good time to pose those questions while we have the language up on the board at that time. Okay, does Kona have a wireless mic that they could use? Again, one of those— KAY: Yes, Jeff, we do. DARROW: Okay. HENKEL: Commissioner Clarkson on this side and then we'll go to Kona. CLARKSON: Does the definition of floor area conform to the Building Department's definition of floor area for structures in applications for building permits? DARROW: I'm, I was trying to get the answer to that question. Unfortunately, I was not able to get that. This, this definition was proposed by a previous division that was working on the SMA. As Maija had mentioned within her letter, the SMA Minor and exemption responsibilities has [sic] recently transferred to the Planning Division. And, so this was something that is new to us. Unfortunately, the people that I needed to speak with were not present this, prior to this hearing, that I could get a response. We can look at that, but this has been, we have been using this definition and applying it accordingly over the past several years, because we have been operating under the State law, and we, it's, it's been proven correct as we've been assessing our applications. CARR SMITH: Jeff? EXHIBIT A 22 CLARKSON: I don't have any big disagreement with that definition of floor area, but it would be nice if they were, it was congruent with other departments. HENKEL: Any other questions from Windward? Okay, I'll throw it over to Leeward. CARR SMITH: Yes, this is Nancy Carr Smith on this side. I just had a quick question, just wanted to confirm. So, all front porches, balconies, lanais, anything covered or uncovered without surrounding walls are not included in square footage. Is that correct? DARROW: That's—if you had a lanai that was covered, and it was a large lanai, that would be considered. We would look at the floor area of that lanai as part of that. That would be in the second portion of this definition that says the floor area of a building or portion thereof not provided with surrounding exterior walls shall be the usable area under the horizontal projection of the roof or floor area. So, normally, the usable area would be a lanai. It would not usually involve the roof overhangs. HENKEL: Any other questions from Leeward? CHURCH: This is Commissioner Church again. I find it interesting the point that was made in testimony about change orders and their effect on square footages. And, I wondered, I'm not even sure if it's appropriate the Planning Department to police that those change orders go through the Building Department. And, but I wondered if indirectly somehow that can be incorporated or it's just left silent. DARROW: Theif, any type of change order that would go through an amendment to a building permit would come through our office, and at that point, we would be reviewing that as part of the original request. There's, to be honest with you, we haven't, there was a testifier that mentioned that people were going to come in with a dwelling that was 7,499 square feet. We haven't had too many submittals since this law was changed that are that close, that we've had an issue. There was one that I recall, but other than that, I don't recall any. And, because that was such an issue with that one particular application, the staff as well as the Planning Division is fully aware of that fine line regarding that. But, as far as anything within this amendment, I don't think we have anything specifically to address that. HENKEL: Any other comments from Leeward? KAY: No, Mr. Chair. HENKEL: Go ahead, Jeff DARROW: Thank you. Continuing on, additionally, Act 153 amended the definition of Special Management Area Minor Permit and Special Management Area Use Permit in Chapter 205A-22, HRS, as follows. Special Management Area Minor Permit means an action by the authority EXHIBIT A 23 authorizing the development, the valuation of which is not in excess of 500,000 and which has no substantial adverse environmental or ecological effect, taking into account potential cumulative effects. SMA Minor Permits are permits issued administratively by the Planning Department. No public hearing is necessary. Special Management Area Use Permit means an action by the authority authorizing the development, the valuation of which exceeds $500,000 or which may have a substantial adverse environmental or ecological effect, taking into account potential cumulative effects. An SMA Use Permit, are issued, they're issued by the Planning Commissions and require public hearings. There are a total of seven references in Rule 9 changing the monetary reference from 125,000 to 500,000. These are listed are Rule 9-4, Subsection Q and R under the definition section; Rule 9- 10, A, D, E, and F, which is under the assessment section; and Rule 9-11(b) which is under the Use Permit, SMA Use Permit procedures section. Continuing on, additionally Act 153 amended Chapter 171-6, Hawaii Revised Statutes, regarding powers of the State Board of Land and Natural Resources which states that the Board may notwithstanding Part II of Chapter 205A to the contrary, plan, design, construct, operate, and maintain any lands or facilities under the jurisdiction of the Division of Boating and Ocean Recreation of the department without the need to obtain a Special Management Area Minor Permit or Special Management Area Use Permit. This provision basically exempts the State Department of Boating and Ocean Recreation from having to obtain an SMA Permit for the construction, maintenance, and operation of any facilities under its jurisdiction. Based on the change in the State law, the following amendment is being introduced under the definition of what development does not include under Rule 9-4(2) and then we're including "R." And, it states to plan, design, construct, operate, and maintain any lands or facilities under the jurisdiction of the Division of Boating and Ocean Recreation of the State Department of Land and Natural Resources. And, again, to clarify, this is being added under our definition section of what development does not include which will not require a permit. Prior to this amendment, the jurisdiction for Harbors was under the Department of Transportation, and they were exempt from this requiring SMA Permits. When the jurisdiction transferred, the exemption did not transfer so the Legislature provided this rule change for that exemption. HENKEL: Any questions on this portion? Leeward? Windward? Go ahead, Jeff. DARROW: Thank you, Mr. Chairman. Continuing on. Okay, these are the additional changes proposed to Planning Commission Rule 9 separate from those changes proposed by Act 153. These changes are being brought to the Commission's attention because as the Planning Director EXHIBIT A 24 and the Planning Department work through the process of dealing with SMA Minor Permits and Assessments. There are certain things that we see that may need to be addressed as far as rule changes. Also, to bring to your attention, these are minor changes that we're looking at currently since we were bringing this change before the Commission in reference to the State law change. We are actively and have been actively working for a period of time on a major rule change for Rule 9, and we will be providing to both the Joint Commission, Windward and Leeward, once we finalize the major rule change. So, we'll continue on. Currently, Rule 9-8(c), permit required for development. This is retroactive language, and this is a direct result of the situation that just has occurred with the State law changing and the County rule not changing to line up with that State law, and that transition time. So, this will kind of give a buffer for the Department to be able to work under the State law change until the rules are amended to reflect that. There's been some good input regarding this, and we are taking that into consideration. One of the suggestions is that rather than trying to change our rules every time the State law changes, is to be able to come up with language that our rule directly reflects the State law so that our rule would just reflect that without needing to change our rule. That's something we're going to be considering in the overall change so that we can do it across the board for Rule 9. But, in this particular, since we were bringing this amendment and it was in response to this, we thought we would address this at this time. This change states the following. Special Management Area Minor Use or Emergency Permits or exemptions validly issued by the Department or the Commission subsequent to any amendment to Chapter 205A, Hawaii Revised Statutes, but preceding any supportive amendment to this Rule, Rule 9, shall continue to be considered valid. Okay, the, what this provision does is it allows for retroactive approvals or determinations that have been made by the Department based on the changes to Chapter 205A of the Hawaii Revised Statutes, as amended, during the interim periods when the Planning Commission Rule 9 has not been updated and amended to reflect the change in the State law. This provision will allow the previous SMA Minor Permits that have been issued by the Department based on the current State law to remain as valid permits. HENKEL: Any questions from Leeward so far? KAY: No, Mr. Chair. HENKEL: Windward? CLARKSON: Yes, I have some confusion about this. It seems to say that permits issued but not according to the Commission Rules permits issued by the Commission or the Department subject to, subsequent to the change in the State Law, but in contravention of our actual rules, will be valid until we change the rules but there's no number limit, time limit, procedural limit. If we never change the rules ever, they would all still be considered valid, and I, I also have a EXHIBIT A 25 personal problem with authorizing the retroactive approval. I know the procedural issues that are going to come up, but I still have a personal problem authorizing the retroactive approval of dozens if not hundreds of permits that I have no idea what's in them or anything about them. Now, that may be the case with future permits, but at least in the future I have the opportunity to investigate them as they come up. When they come up. Thank you. DARROW: Thank you. HENKEL: Any other questions? I do have a question. Everything we've talked about so far is the first slide. Are we going to be acting on the individual portions of this or? DARROW: Correct. HENKEL: Okay. Please proceed then. DARROW: Just to bring clarification to this particular rule change, there have been a number of—since Act 153 was initiated and approved in 2011, there was an attempt by the Department and the Commission to change the rules. Unfortunately, it did not change. There was—the Planning Commission deferred the action and the Planning Department has been working on the major rule change to be able to bring that. There's been, it hasn't been an easy process. There's a lot of difficult issues to be able to define as we go through the rule change. We did not have any of the permits be appealed until recently, and that's when this, this issue came to a forefront. All those previous SMA Minor Permits that were approved were approved with no problems. There wasn't an appeal or anything. So, this recent appeal that happened, it was brought to our attention from our Corporation Counsel regarding this conflict in the rule. As a result of that, our Director rescinded that minor permit and has been acting accordingly in regards to the 125 -limit until we change the rule at this time. I do not believe it is the intention of the Planning Director or the Department to not effectively line up with State law as soon as possible. What we're trying to do here is in this change, make it known that even if State law changes and our rule doesn't change, we still can operate under that change until we line up our rule through this amendment. JACKSON: Chair Henkel, can I add to that? Commissioner Clarkson, I understand your concern about having it be open-ended. You know, you're always going to have a lag between the time period of when a State law passes and when we can get a joint meeting together. There's always going to be a period of lag, but I think what I'm hearing from you is you don't want to go on for years without changing the rules. And, if there's a way that we can modify this language to account for that, that would be great, but we also have to consider what happens if we try to do a rule change like we did in 2012 and the Commission still doesn't want to change their rules. Then, we're caught in this limbo of not being able to issue permits until that rule is changed. So, I think it might be a good idea to have them—have it not be open-ended, but how exactly to word that, we'd be open to suggestions. CLARKSON: Well, I just have a concern with a rule that says the Director can follow procedures that are counter to our rules if the State law has been changed even until we change EXHIBIT A 26 the rules. So, I just see a real internal contradiction there in a rule that says you don't have to follow what the rules are as long as it's, State law has been changed. Either just put an amendment in here that says everybody follow State law and call that good enough or we have to stop action on everything until we change our rules. And, I also have concerns about whether you can call permits that were issued contrary to our rules validly issued permits. I'll have to ask the Corporation Counsel for suggestions in that regard, but I don't know how many permits have been issued over $125,000 value limits since 2011. DARROW: We took a look at the numbers this morning. It looks like about 130 to 150. HENKEL: Any more questions or comments? Proceed, Jeff KEALOHA: This is Commissioner Kealoha in the Leeward Planning. In reference to a hearing to State law until rules have been set, if I walk though Act 153, I'm on Page 11, so as I'm reading Act 153, it appears that what would not be considered development is Final Subdivision Approval of four lots or less and then transfer of title, and then from that point construction of single-family dwellings. So, in essence a property could be subdivided into four lots, sold, and then four individual dwellings constructed, and each would be exempt from the SMA process when, in effect, there's four dwellings being built on this property. Is that correct? Would we adhere to that Act 153? DARROW: Commissioner Kealoha, I, I'm looking at Page 11, and I believe you're referring to No. 12 and No. 13. Is that correct? KEALOHA: Nine, twelve, and thirteen. DARROW: Nine, twelve, and thirteen. Yeah, those are currently in the rule. The only one that was added was No. 11. No. 12 was renumbered, and No. 13 was renumbered. Those are currently in our rules. Final Subdivision Approval was a proposal that was changed here, but as far as adding it to our rule, there was no trigger for an SMA permit for a Final Subdivision Approval. It's not a development. It's not a process that we review for SMA permits. And that's why that's not added to our rule. KEALOHA: Okay, thanks. KAY: Jeff, we have one more question over here. One moment. CARR SMITH: Thank you. Commissioner Carr Smith here. I just—Jeff, I just wanted to ask you if you could clarify as you go along the rule changes that are being proposed that have to do with correlating with State law. I know on that retroactivity one you, you spoke to that pretty clearly, but I don't know whether any of the others have to do with being in line with the State, and I think it would be helpful to know that as we go through, please. DARROW: We'll do that— EXHIBIT A 27 UNGER: —This is Commissioner Unger. DARROW: Oh, sorry. UNGER: Just to clarify. We have a State, we have the State Legislature passing HR[S] 153, and now we're attempt—now, we're talking about coming in line with that with our rules, and maybe this is a Corporate Counsel question. Do we have to? I mean, are we mandated that we have to come into, into alignment with what the State has done or do we have the authority to say, well, State, you are doing what you're doing. We've decided to keep our same rules. So, I think that, that probably just needs to be a discussion for clarity purposes. HALL: Yeah, the State, the actual HRS 205A gives the Planning Commissions ultimate authority, so it doesn't go through anybody else but you guys so, technically, when it comes to State law, usually the rule is you can make it stricter but you can't pull, you can't go the other way and make it less lenient. So, I guess, if you guys wanted to, you guys do have the authority to, to not conform completely. But, it does, I guess, run into some problems when if we do end up in court. All the other jurisdictions are doing it this way and then we're doing it a different way. It gets a little messy, but it's still within your authority to amend your rules the way that you see fit. HENKEL: Any other questions? Go ahead, Jeff CLARKSON: I HENKEL: Oh, I'm sorry. CLARKSON: I'd like to follow up on that. So, my understanding is that we certainly as a Commission don't have the power to make a definition such as a minor permit that is at odds with the State definition as enacted by their State law. All we have the capability of doing is determining what part of our remit we can assign to the Department to execute. So that if we have a value, say for the minor permit, that is different for assigning that, let's just go to the existing 125,000, $125,000 valuation level, my understanding is we could keep that but that would not change the definition of a minor permit being anything that's less than 500,000. The State defined it that way, and we have to follow that. All it would mean is that the Commission as a whole would have to assess every application over a 125,000, and the Director would only be able to deal with applications where the valuation was below a 125,000. So, I mean, we can take on that workload. Apparently, there are about 20 of those applications per year, but I would just be advised that if we don't want to let the Department handle them, we have to handle them. SELF: Um HENKEL: Here's Amy Smart [sic], Corp. Counsel. EXHIBIT A 28 HALL: Self, Self. HENKEL: Amy Self, I'm sorry. SELF: I like that last name, Smart. Better than Self Amy Self, Deputy Corporation Counsel. I'm the Corporation Counsel assigned to the Planning Department, so I advise the Planning Department. So, I'd like to bring your attention to HRS 205A-27 which is the designation of Special Management Area authority. Okay, and you are the authority that is designated under this section. Under that section it says the authority, meaning the Planning Commission, is designated to Special Management Area authority and is authorized to carry out the objectives, policies, and procedures of this part. So, in other words, the State Legislature made the planning commissions of the counties the authority to carry out the objectives of 205A. So, if you look at the objectives of 205A and the policies and procedures that includes the definitions of what development is and what development is not. So, in other words, when the State law changes, this 205A chapter, it's assumed that the authority is going to still carry out the objectives, policies, and procedures of this part regardless of how it is when it was first written because it's going to be amended from time to time. But, it's, you know, the authority's job is to carry out the intent of 205A which will from time to time be amended by the State Legislature. I hope I didn't make things worse HENKEL: Any questions from Leeward? DARROW: If I can just KAY: Not that I see here, Mr. Chair. HENKEL: Okay. Windward? Go ahead, Jeff DARROW: So, just touching base with what Joe is mentioning, and I believe you are correct. The definition remains the same. You have a definition that's been changed from minor permit up to 500,000. Anything beyond that is a major use permit. Currently, the authority for, you have designated the Planning Department, Planning Director with the authority to administer the applications for the minor permits. If you changed your rule or if, if it remained the same, and minor permits could only be issued by the Planning Director at 125,000, we would have to come up with a process to be able to bring anything beyond that to the Planning Commission. Currently, we don't have that process in place. We have the process in place for the Planning Department but not for minor permits to go to the Planning Commission. SELF: May I add one other thing. Maija just explained to me what you're actually asking. The reason I had stated what I just stated was to let you know that, yeah, your job is to carry out 205A, but you have the ability to delegate whatever, whatever authority you have toI mean, you can delegate whatever you want. But, the problem with delegating the authority to the Planning Director for an amount that is less than what 205A has, because they've amended it, it EXHIBIT A 29 seems that you would not be carrying out the policies of 205A. You could either decide to start reviewing minor permits yourself, anything that does not exceed $500,000. That's something you could do. Or, as you've done in the past, you could delegate minor permits to be determined by the Planning Director. The Planning Director is not trying to tell you we want to continue to do minor permits. It's up to you. It's up to the Planning Commissions to decide whether you want to review minor permits or not, but what I'm suggesting here is per State law, 205A, that section I just read to you, seems to imply that you're supposed to be carrying out the law as it reads under 205A. So, they've set the definitions for minor and major permits. So, if you're not going toNo. 1, if you're not going to change the rule to state what the State law has—let's say you continue with the 125,000 right now as it is stated in your rules, well, that's going to be kind of odd because you're giving the authority to the Planning Director to determine minor permits that do not exceed 125,000 in valuation. So, then that means that anything from 125,000 up to 500,000 would go to you as the Commission to determine for a minor permit. So, you're going to have two types of minor permits. Those that go to the Planning Department to be determined and those that go to the Planning Commission. Because the State law has set it at 500,000 up to but not exceeding 500,000 for a minor permit. CLARKSON: Yes, I wasn't implying that I favored that kind of structure, but I was wanting to be sure that I was correct. That, that was actually possible should we for some reason want to do it that way. But, it also raises the question that we actually did it that way, except since 2011, we left the rule there giving the Director authority on permits with a valuation no greater than 125,000, but we didn't, as a Commission, process any of the permits over that limit, but left it to the Department to do so in contravention of our rules. So, I'mI'm a little bit concerned about that. I don't know how much concern I should feel, but there's a little bit concern there. HENKEL: Any other questions? Leeward? KAY: None that I see, Mr. Chair. HENKEL: Windward? Okay, Jeff. DARROW: Thank you. I'd like to read something before I proceed, and this is the intent of the Legislature in enacting [Act] 153. It states, "The legislature finds that the cost of purchasing and importing construction materials, along with the cost of labor, has risen at a rate that has increased the overall cost of projects that, in the past, may have been viewed as insubstantial or minor. Furthermore, the increase in the number of these minor projects and the shortage of personnel that the various county planning departments are experiencing, have significantly slowed the review and processing of minor projects within the special management areas of the counties. The purpose of this Act is to expedite and facilitate work on projects that have been or may be stalled due to delays [relating] to special management area permitting requirements." So, I just wanted to make mention as to the intent of that, reason for the increase from 125 to 500. EXHIBIT A 30 Why don't we continue on? Continued amendments, Rule 9-9. This is the section that we've added to clarify the authority that has been given to the Planning Director from the Planning Commission. Now, unfortunately, it appears that some people are thinking that we've added, we've added additional authority in this section. What we were trying to do was just put a clarifying paragraph of what the Planning Director and Planning Department currently have as the authority from the Planning Commission. There was talk about in some of the submittals about the Planning Department shouldn't be able to add conditions on exemptions. This portion has been in our rule for quite some time. It's under Rule 9-10, Sections (g) and (i). So, it's not something new. Again, we were just clarifying some of the authority. JACKSON: If I can just add to that. Jeff, before you read the section that we're proposing to add to clarify the Department's authority, I'd like to read what your current, the current rule states as far as the delegation of authority to the Department. The current rule reads under [Rule] 9-9, Authority of the Department in the SMA, "All development within the SMA shall be administered through the Department under this rule pursuant to [the] objectives and policies and the SMA guidelines as provided by Chapter 205A." So, that's the current language in your rule, and you can see it's very broad, very general. It says the Department shall administer all development within the SMA. So, what this new section is doing is we're trying to be more specific about what authority is delegated to the Department, what permits, what actions, and what authority the Commission is keeping because right now, the current language in Rule 9-9 is very broad. DARROW: Thank you, Maija. This provision, this is probably reiterating what you just said, but I'll read it. This provision further clarifies the authority delegated by the Planning Commission to the Department/Director to administer the objectives and policies and the Special Management Area guidelines as provided by [Chapter] 205A, HRS. This addition gives clarity in the rule that the Department/Director will process SMA assessments, make determinations as to whether a request is exempt from requiring a SMA permit or to issue a SMA Minor Permit, to issue a SMA emergency permit, and to administer, interpret, and enforce the terms, scope, and conditions of a SMA Use Permit that has been, that has been issued by the Planning Commission. So, these are permits that have already been issued by the Planning Commission through a major use process. Continuing on. Rule 9-10(b) Assessments, Review and Acceptance. For purposesI'm sorry for proposed uses, activities, or operations that are subject to an assessment, the applicant shall submit to the Department a Special Management Area Assessment, SMAA, on a form prepared by the Department. The review and acceptance of the assessment application shall follow the procedures pursuant to Section 25-2-3, review and acceptance of applications, in Chapter 25, Hawaii County Code. This provision will bring the review and acceptance of an SMA assessment application in line with the current practice that is done for permits submitted to the Planning Director as required within the Zoning Code. The application will be reviewed, and if complete, the acceptance date will be the date of the submittal. If accepted as complete, the assigned planner will complete the review of assessment and provide a response within the allotted time. If the application is EXHIBIT A 31 incomplete, it will be returned to the applicant with a request for additional information needed to accept the application to complete. Normally, within Chapter 25-2-3, the time period for acceptance and review is 15 days. So, when an application is received, the planner that's assigned to that has 15 days to review for acceptance. Currently, because of the, there's no review time for acceptance and rejection, the planner can keep the SMAA application for 35 days and then return it as incomplete. We feel that it should be in line with our current process, but at the same time, we are also asking that, that review time be extended because of the amount of applications that we have been receiving, but we'll get into that more as we go on. Any questions? HENKEL: Leeward, questions? KAY: No, Mr. Chair. HENKEL: And, none from Windward. DARROW: Rule 9-10(d), again under the assessments of filing fee. We're proposing to ask currently, assessments have no filing fee. There are certain processes within our Department that require a lengthy review, quite a bit of staff time, that have no filing fee. SMA assessments are one of those processes. Currently, we're just asking for a $50 filing fee to help with administrative costs for that particular application. This will add a filing fee of $50 for the submittal of an SMA Assessment. Currently, there is no filing fee. This will help with some of the administrative costs. Continuing on, Rule 9-10(d), time to complete review. The Director within 60 calendar days after receipt of all filing requirements or within a longer period as may be agreed to by the applicant shall notify the applicant in writing that the proposed use, activity, or operation does not constitute a development or is exempt from the definition of development, or a Special Management Area Minor Permit is being issued, or a Special Management Area Major Use Permit is required. If the proposed use, activity, or operation is less than $500,000 in value and the Director fails to act within [the] 60 calendar day period, or within such longer period as may agreed, been agreed to by the applicant, the proposed use, activity, or operation shall be forwarded to the Commission for its consideration. The notice and hearing procedures and action shall be the same as under Section 9-11(c) through 9-11(f). This provision will increase the review time for SMA assessment application for the assigned planner from 35 days to 60 days. Over the past few years, there has been an increase in the submittal of SMA assessments and the assigned planner has many times needed to request additional time for review from the applicant. It is the Department's full intention to complete these assessment reviews as expeditiously as possible, but this added time will bring relief during times of increased application submittals and with complicated applications that require a more detailed review. EXHIBIT A 32 And, as mentioned, what will happen in this current process, if agreed to, the application will come in, the assigned planner will have 15 days to accept or reject. So, the applicant will not need to wait a long period if the application is rejected. It will be a short period for turnaround. But, if it is accepted within that five [sic], fifteen days, then from the date of submittal, the planner has 60 days to respond. That 60 days also allows time—there are a number of situations where the assigned planner needs to get, receive comments from governmental agencies, so, there are a number of agencies that may be involved in a review such as if the, if the development is along the shoreline, we may want to hear from the Department of Land and Natural Resources, from Department of Public Works regarding the flood zone. If it's within a historic district or it's on a State register, we'll want to hear from Department of Land and Natural Resources, Historic Preservation Division. And, so those reviews take time. They, she receives the application. She sends out for comments. She can't finalize her review until she receives those comments back. Sometimes, they don't come back for 30 days. So, it holds up the process again, and then she has to ask for additional time from the applicant. Continuing on. Rule 9-10(i) assessments, the SMA Short Form Assessment application. The, we—the Department may create a SMA Short Form Assessment to be used by the Department to assess uses that may result in a determination that the proposed use is exempt. Example, single- family residence, minor grubbing, or accessory structures. The Short Form Assessment may include but not be limited to the following information. The tax map number for the property; a plot plan for the property, drawn to scale, with all proposed and existing structures shown thereon; description of the proposed action, including the extent of land clearing, if any; and description of any known historical sites, anchialine ponds, wetland, or sandy beach, and any other pertinent information. In case of a single-family dwelling, a building permit application plot plan may suffice as the plot plan required under number two. So, if it is a part of a single-family dwelling, they won't need to submit a separate site plan. That will be part of their application. The reason for this change is the Department had created an SMA Short Form Assessment application that was done by the applicants. There was information that was requested on the short form assessment application that basically held up the process. They needed to have signatures from landowners. Normally, this would be done by a draftsperson that's running the plans for them. The whole process stops. They have to go back. They have to get a signature from the landowner. And, there was other information that even though it was supposed to be, help the process, it ended up bogging the process down. What we're trying to do is when these applications come into the Department, the Department staff will have this form available to them, and they will be able to fill it out based on the request from the applicant. We're hoping that this will expedite the process, and that they would be able to get the exemption for the SMA at that time. The other reason for this is there was a change in our Department where the, we had an in-house memo that basically, because of the holdups that were happening at the counter, the Planning EXHIBIT A 33 Director had said if it's these particular developments, then they can go ahead and exempt it at the counter. The problem with that is we had no record of that exemption determination being made by staff. And, so, the other relief that this form will bring is they'll still be able to do that assessment and exemption determination at the counter, but we will have a record of that determination made. A copy of this will be put in our file as well as given to the applicant. So, there are things here that we can fill out without the applicant having to sign the form or, or do anything beyond what we're doing. Some of the added review there is based on recent court cases that have happened, especially the Missler case where public trust doctrine issues have come up. So, we want to make sure that as we are reviewing these submittals that we take a look as far as the information provided through us, to us through GIS and Google Earth and other programs that we can take a quick look and see if there's any public trust issues. Did you want to add something, Maija? In the letter that was sent in response to the submittals to the Planning Department, a copy of the assessment application or form was part of that, so you can refer to that to see what that entails. Any questions? HENKEL: Questions from Leeward? KAY: None here at this time. CLARKSON: I just have a brief question. So, [HRS] 205A specifies what actions are exempt from permits, but does it clearly state who or what authority is to determine and how they are to determine what's exempt? I mean, it's just, is it clear DARROW: Planning Commission. CLARKSON: Okay. So, it's up to us to establish procedures to determine what is exempt. DARROW: Which you have. CLARKSON: This is what we have here. DARROW: Correct. CLARKSON: Okay. DARROW: So, you have delegated to the Planning Director and the Planning Department to assess these to determine whether they are exempt, whether they need a minor permit, or whether they need to come before you. CLARKSON: Thank you. DARROW: Thank you. EXHIBIT A 34 DELA CRUZ: Hey Jeff, question, where did you guys come up with the filing fee from? The cost on the filing fee, is that enough to cover the cost of everything? The fifty dollars? DARROW: That's a toughI mean, there's no, there was, when it first came out, there was another number, and we though well, right now, it's zero, so we didn't want to, you know, go from zero to 500 or. We thought fifty would be a good starting point because of the fact that, again, it's a change, and we want to try to take that change as least impact to the public as possible. DELA CRUZ: Okay, but was checking to see if that was enough to cover the costs of everything or just move it up to a hundred dollars or something like that. DARROW: Yeah, I don't even think that would coverI mean, the cost for when you, when we look at costs of staff time and administrative costs, it's costly, so, but it's part of public service as well. DELA CRUZ: Thank you. DARROW: Thank you. Moving on. Rule 9-10(i) assessments. Again, the short form continued on. It says that the Director may require a full SMAA if it is determined that through the short form assessment review that further information is needed from the applicant. The Director may impose certain conditions with the exemption determination to assure that the proposed use, activity, or operation does not have a significant adverse effect on the SMA. And, again, the language that is underlined is new. The language that is not underlined or blocked out is current language. And, again, the KAY: —Jeff and Mr. Chair, can we take—can we take about a five-minute recess here, please? HENKEL: Yeah. KAY: We got a testifier here who would like to provide public testimony and HENKEL: —Okay, we can take a break. KAY: [Inaudible.] HENKEL: But, the public testimony portion of the meeting has closed and so public testimony is over, but we will take a five-minute break, and he can submit his testimony in writing. KAY: All right. HENKEL: We'll re -adjourn at say 12:05. Reconvene. Chair Henkel called a recess at 12:00 p. m., and the meeting was reconvened at 12:11 p.m. EXHIBIT A 35 HENKEL: I'd like to reconvene the meeting. Are you ready, Leeward? KAY: Yes, Mr. Chair, we're ready. HENKEL: Okay. I understand there has been a request for another public testifier, which we encourage, but we cannot reopen public testimony. I would like to offer Vice Chair Unger the opportunity to invite a witness for a brief statement, if KAY: No, the testifier has left the chambers. HENKEL: Okay. Thank you, then. Then, we'll let Jeff continue with his presentation. Mr. Darrow? DARROW: Thank you, Mr. Chairman. Continuing on, before we took the break I was about to read the clarification for this last provision. It states, "This provision will bring clarity to the SMA Short Form Assessment application review, which will be done by the Planning Department staff during review of the applicant's proposed request. For example: An applicant submits a building permit for a single-family dwelling that is under 7,500 square feet in size and is not a shoreline parcel. The action is defined under `not development' and would be exempt from requiring an SMA Minor Permit or an SMA Use Permit. The SMA Short Form Assessment will be completed at the time of review by staff as a record of the exemption determination." Moving on, Rule 9-11(B)(1)(I) is that correct? Think so, Special Management Area Use [Permit] Procedures, and additionally, as I mentioned previously, this also includes Rule 9-10(b)(9) under Assessment, and this has to do with the waiver of the submittal of the shoreline survey. The, just for clarification, the underlined portion is what we're proposing to add, and the cross out is what we are proposing to take out: "A current certified shoreline survey when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakably located on a shoreline parcel at a distance of at least one hundred feet from the shoreline." "This provision currently allows the Planning Director to waive the submittal of a shoreline survey as part of an SMA Use Permit application," or Assessment application, "when the parcel is a shoreline parcel but the development is located at a considerable distance from the shoreline. As there is currently no definition of what a `considerable distance' is, the Planning Director is requesting to add a distance of at least 100 feet to this section to clearly indicate that when a development is proposed within 100 feet from the shoreline, the applicant will need to submit a shoreline survey that has been certified by the State as part of the SMA Use Permit application," or Assessment application. And again, our oversight when we go through these rule changes, you know, we'll have ten people review them and it, it just is a constant situation where we find the portion that we missed in our review. And in this particular review, we missed the similar provision under the Assessment, and we'd like to add that as part of this review. It's exactly the same language that would be changed in both sections. And this one, I think, is probably one of the more controversial changes. You have two sides of this. You have people that want a survey to be done, if it's a shoreline parcel, period. But, sometimes you have shoreline parcels that are, that are extremely large and the development is going to be a considerable distance away and you know it's not going to have an EXHIBIT A 36 effect on shoreline processes; but in the same manner, we deal with a lot of applications on shoreline parcels that are small. They may be 10,000 square feet or 15,000 square feet, and so a considerable distance on a 15,000 -square foot lot is, is, we don't have the definition yet, people will request a waiver from the Planning Director to waive that submittal, and it puts a lot of pressure on the Department and the Director to make that call. So in this, by placing an actual distance, it gives, we feel a 100 -foot is a clear distance that the development won't have an effect on shoreline processes, and in the same manner gives us the opportunity to clearly say that if you are within that, you need to submit the shoreline survey as part of your Assessment or your SMA Use Permit application. Any questions? KAY: There is one from here, Jeff One moment. CARR SMITH: Just a quick question. Commissioner Carr Smith. I was wondering why you folks wanted to take out the submission or inclusion of the valuation. It was, I believe, on your previous slide on the Short Form. Why would you not want the valuation, if we are being specific about what the value should or should not be to qualify? Number (4), you crossed out "A statement of valuation" on 9-10(i). DARROW: We have a, on the Short Form Assessment Application, if you have that with you, it's an exhibit in the letter that we responded to the submittals. Do you have that, Commissioner Carr Smith? CARR SMITH: Yes, I see it. DARROW: Okay, there is a box on the first page titled "Nature of Development/Activity." So there are one, two, three, four, five, six items that are within this Assessment determination. Regardless of value, these are considered exempt actions, and so there is really not a need for a value. HENKEL: Does that answer your question, Ms. Carr Smith? CARR SMITH: That's fine. Thank you. HENKEL: Okay, Jeff, or Maija? JACKSON: Yeah, if I could, what I'd like to do is just kind of go through a general SMA permitting process for the Commission. So basically, what happens, what we are proposing to happen with these rules changes, is somebody will come in and they'll want to do some type of development in the SMA. Let's say, it's building a house. For those people that want to build a house on a property that are in the SMA area but are not a shoreline parcel, they will get an exemption through the new Short Form that we are implementing. And the reason why is that's provided if the house is under 7,500 square feet. Then if you have folks who come in and they want to build a house that's under 7,500 square feet on a shoreline parcel, those applicants would submit the SMA Assessment form that ask for a little bit more information, typically they have to do the certified shoreline survey because they are on a shoreline parcel, so the Department needs to ensure that any activities, development that they'll do are set back from the shoreline EXHIBIT A 37 setback area. So those are two types of assessments, or approvals. If the house is above 7,500 square feet, then they would, we would advise the applicant you need to submit an SMA Use Permit application to the Planning Commission. And those are the types of applications that you have seen before. So that's just using a home as an example. There's a lot of other activities that occur in the SMA that typically are exempt, so those would either be approved by the Department through the Short Form, if they are non -shoreline activities, or through an SMA Assessment form. DARROW: Thank you, Maija. HENKEL: Question. Is that 7,500 -square foot figure currently part of the State law? JACKSON: Yes. HALL: Sorry, Jeff, just for clarity, you said that you're adding that language to another portion? DARROW: Correct. HALL: What rule number? DARROW: That would be Rule 9-10(b)(9), which is under the Assessment section. It's the same language that's under the SMA Use Permit application section. And we want to just change the same section the same so they're consistent. It's like a constant thing. We go through it twenty times and always find one we missed. We apologize for that. CLARKSON: Can I ask a question about, going back to the "at least one hundred feet" part? You asked for questions and I have one. There seems to be a kind of internal contradiction here; you're going to measure to determine whether the development is within a 100 feet of the shoreline, but at the same time, you are admitting that you don't know where the shoreline is because you are not requiring a certification of the shoreline. So, I would think that it would be wise to, instead of referring to the shoreline, to refer to a previous certification that might be no older than a certain number of years. If the shoreline has never been certified, I wouldn't want to, you know, agree with this revision, the 100 feet, because we don't know where it is. DARROW: Thank you, Commissioner Clarkson. Yes, that's the dilemma. That might be good, though, that suggestion putting in a previous certified shoreline or something. But, yeah, unfortunately the shoreline is an ever-changing constant moving target that we get. We are always trying to, you know, catch the shoreline. And, even when you do get a certified shoreline, it's only good for one year. But, we could look to that as an example. And, you know, I think that's where we get the 100 feet, you know, it's not like we are going to go out there and measure exactly a 100 feet, but we are going to be able to know this is far enough away that you are not going to affect the shoreline, it's clearly not 20 or 40 feet but it's clearly far enough away that the development won't be in the shoreline setback area, which is normally 40 feet. So that's where I think we came up with the 100. We had people asking for 60 feet, but we felt like that's still hard to come up with that, that confidence that you're not going to affect shoreline processes at 60 feet, and you're making the determination based on an unknown of the EXHIBIT A 38 shoreline that's not certified. But again, that's definitely a good suggestion to consider. Thank you. KAY: We had one more question here, Jeff CHURCH: As interesting point this is Commissioner Church—interesting point on not having the shoreline, what about the property boundary, though? If it's a lot, it will have a metes and bounds and that may or may not coincide with the shoreline exactly but it's generally shore side and is a definable spot, definable line. DARROW: We've currently been trying to determine this issue between the legal property boundary versus the property boundary changes that happen with the certification of the shoreline, and we are actually in the process right now where we've submitted a request to our Corporation Counsel to do further review on this. What's been happening is previously staff and the Commission actually were given information through training from Department of Accounting and General Services, or DAGS, who normally does the certifications on the shoreline, that the certification does not change the ownership of the property, that's what they used to tell us, but apparently there was some change that occurred in case law or through opinion from the Attorney General's office that the certified shoreline changes jurisdiction, as well as ownership. And there hasn't been something submitted to us that clearly gives us that information, but our understanding right now through comments that we've received through Department of Land and Natural Resources is that when the certified shoreline occurs, that the property makai of that becomes State-owned, and that if you have any encumbrances in that area, you have to request a lease from the State whether it's a structure or if you are using that particular land or even some structures project into that, and they have to get what's called an air easement. So it's a unique situation. The concern for us is, again, not knowing but also the fact that if that is true, then landowners are still being assessed real property taxes on land that now the State says they own. There hasn't been an actual process that changed that ownership, so when a landowner is assessed taxes, it's still at the current ownership of what the land is identified as. HENKEL: Jeff, an anchialine pond is, you know, by definition not part of the shoreline but it's part of the shoreline system. Does the State consider that part of the shoreline that would be measured from? DARROW: I think if it has connection with the ocean, they will. HENKEL: Any other questions so far, Leeward? Windward? Okay. DARROW: That concludes our presentation. HENKEL: Thank you, Jeff That was a very good presentation. So we're going to come to the point where we do discussion and action on line -by-line items. Is everybody ready to dive in? KAY: Mr. Chair, we need a few minutes to get the Leeward Commissioners back in place, please. EXHIBIT A 39 HENKEL: Sure, take your time. KAY: Okay, I believe we are ready here. HENKEL: Okay, so we are going to work in the order that the slides were presented, and Maija will be conducting this, right? Or Jeff? JACKSON: Jeff and I will be conducting it. DARROW: So what we can do is, what I've heard I believe from the Chairman is that they would, you would like to take each change at a time and vote on each one accordingly. HENKEL: Yeah, you'll, you'll read the change, and then we'll have a motion and second and discussion and vote, right? DARROW: Great. The first one is in regards to the definition of what development is not relating to a single-family dwelling. Now, this one is, also involves the next one, which is the floor area. So I don't know if you want to separate those or combine them. Separate them? Combine them? HALL: I would advise to combine it. I would advise to go by the numbers like in your brief in the recommendation report. So like Number 1 would be one motion, Number 2 would be another motion, and then if you guys want to split it further than that, if you feel like one needs to be discussed more, then you guys can go ahead and do that. But, that's what I would recommend. HENKEL: I have a question for Corp. Counsel. If, if we disagree with the numbers the State has come up with, is there any point in suggesting changes? HALL: Is there any point? I guess I'll just answer that with, as it was discussed earlier between Commissioner Clarkson and Deputy Corporation Counsel Self, that you can change the number but then you'd also have to create the system to deal with basically like Minor Permit A, which is under this valuation goes to the Department, the Director, and then Minor Permit B goes to, comes in front of you, and then everything above 500 [thousand] would still come to you. So, it just depends on how much you want to create. You do have the power to change that number, but you would then also have to come up with the rest of the plan. HENKEL: Thank you. DARROW: So we'll look at Number 1 in your Background and Recommendation, which is, as mentioned, the amendment to the definition of what development is not relating to construction of a single-family dwelling, as well as the definition of floor area. Discussion? HALL: And it also includes Final Subdivision Approval. EXHIBIT A 40 DARROW: This, that actually is, yeah, it's, we were just saying that there is no agency action to do that, so we, that was part of Act 153 but it was not part that we were including in our revision. RAFFIPIY: Question. Let me, sorry, you've got to go back to the last question that we were talking about. I'm just kind of trying to process that. The Planning Department, are we, if we are going to have that permit, or the State calling the Minor Permit A and B, are you, do you have the means to do that? I mean, are you, I know you kind of address here briefly, but how confusion [sic] would that, how confusing is, would that be when we start, you know, going Permit A and Permit B? And how well that be, how well the community will receive that? Will that, will they understand that, or is that something that is going to be just understandable within the Planning Department? Right now, it's pretty clear cut because anything that is, what's that, 125,000 or less, you know, the Planning Department can issue that; anything above that, you know, Commission issue that. And right now we are going to have these layers. I don't know how, how well the public will receive that. That's all. Thank you. HENKEL: Any other comments or questions? Leeward? DARROW: I can try to address Commissioner Raffipiy's concerns. Currently, the Director and the Department appear to be working pretty well in harmoniously together. An Assessment application comes in. If it's under 500,000, we'll process it. And 500,000 may seem like a lot of money, but nowadays it's actually not that big of a development. And again, that was the whole purpose of Act 153. If it's over 500,000, they will come before the Commission for an SMA Major Use Permit, which goes through a public hearing, notification process, the possibility of a contested case hearing, which gives quite a bit of public input. The process currently, as mentioned by one of our submittals, is that when the Planning Director issues a Minor Permit, somebody may appeal that and it goes to the Board of Appeals. That is something currently we are looking at in our major rule change, because we feel like there should be the process to go before the Commission, if they have concerns, and how the Commission look at it, and then if you agree with it, you affirm the Director's decision; if not, then it would go to Third Circuit Court. So that's a change that we are currently looking at as well. But, again, the other side of the coin is, is that anything over 125 [thousand], which could be hundreds of permits, would have to come before the Planning Commission. That's the other side of the coin. HENKEL: This is Henkel. I'm, you know, I'm concerned more by the square footage than the valuation. And, but that's a concern, too, because, you know, $500,000 when you are talking about a shoreline area in North Kohala is a lot different than $500,000 in Lower Puna where, you know, where I come from, and, you know, they both, a smaller development could conceivably have just as great of an impact. I'm more concerned with the 7,500 -square foot because to me that's a large development no matter what it is when it's in the SMA area, and, you know, that just kind of bothers me that it's not more like 3,000 square feet or something, which would still be a large single-family house in my eyes. But, that's all I've got to say. DARROW: If I can just address that as well, is that, as mentioned before, previously prior to this change, any single-family dwelling that came in was exempt regardless of value, regardless of size. So, this actually is more strict than it was. That's, even if the dwelling is $4,000,000 EXHIBIT A 41 over 500,000, it doesn't trigger a permit. It's still exempt. The trigger for a permit is the floor area. So just keep that in mind. Thank you. SELF: I'll add something to that, too, because sometimes this is lost in the conversation. If you look, no matter if it is an exemption or not, there is also the other half of the equation, which is real heavy cumulative impact or substantial adverse environmental or ecological effect on the SMA. That's always there. Even if it's declared an exemption under the definition like let's say a single-family dwelling that meets the definition and it's let's say less than 500,000 in value and less than 7,500 square feet, they still have to look to see what the impact will be. If there is a cumulative impact or substantial adverse environmental or ecological effect on the SMA area, it's not going to be exempt. So they're two, it's a two-step process. HENKEL: Thank you, Amy. DARROW: The criteria for determining that is also found in your rules under 9-10(h), which is defined as Criteria of Substantial Adverse Effect. So it gives you all the different possibilities of the definition. HENKEL: Is there a motion for action? CLARKSON: I move that the Director's recommendations for the amendments of 9-4(2)(A) and, can I add (R), be adopted. HENKEL: Is there a second? UNGER: Second. Commissioner Unger. HENKEL: So it's been moved by Commissioner Clarkson that 9-4(2)(A) and (R) be adopted, and seconded by Commissioner Unger. Discussion? UNGER: I think this is, this is Commissioner Unger, this is fine. Like Mr. Darrow said, this actually strengthens public oversight. Previous to this, somebody could go build a 20,000 -square foot house, a 30,000 -square foot house, and it would not be called a development. So, although the number is somewhat arbitrary, I think we go back and forth with 7,500 square feet or 3,000 or 8,000, I think it's important at least there is a threshold there. And, that together with Corporate Counsel Self's description that regardless if there is a cumulative effect on the shoreline, regardless of the size of the house, or the smallness of the house, it still would require a permit, so I would be voting yes for this motion. HENKEL: Thank you, Commissioner Unger. Is there any other discussion? Maija Jackson has a comment. JACKSON: Hi, Chair Henkel. I need to clarify the citation of the motion. So, Commissioner Clarkson, you said 9-4(2)(A) and (R)? I think it should be 94(e)(2)(A)—and what was the other one(A), and, there is no (R). EXHIBIT A 42 CLARKSON: The new one. JACKSON: Okay, and adding (R). Okay, thank you. CLARKSON: Yes, indeed that was my intent. JACKSON: Thank you. HENKEL: The motion is amended. Is that okay with you, Mr. Unger? UNGER: Yes. HENKEL: Thank you. Any more discussion? Then Maija will do a roll call vote. JACKSON: Okay. Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. EXHIBIT A 43 JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: [Inaudible.] JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: And Chair Henkel. HENKEL: No. JACKSON: Okay, the motion passes. HENKEL: The motion is passed, so we move on to the next item. DARROW: The next item that we are going to be looking at is in the similar section, this is going to be relating to the definition of Special Management Area Minor Permit and Special Management Area Use Permit, and additionally, the changes that have occurred throughout the rule where changes, the value of 125 [thousand] to 500,000. There are seven places within the rule. I can, I think I have, we want to make sure we get that right again, 9-4(2)(e)—you got that one, Maija? This is for the valuation, so we have seven places that we're changing. Here we go, I got it. Okay, and so this will include 9-4(e)(q) and (r), (e) and then (q) and (r), correct? Nine, or is it (2)(4) and (r)? Boy, no, no, oh, just 9-4(q) and (r)? Okay. And then Rule 9-10, Subsections (a), (d), (e) and (f) under Assessments, and lastly Rule -9, 9-11(b). Nine -11, oh, wait, wait, wait [Inaudible discussion among staff.] Okay. Okay, so, as mentioned, what this, this proposal does is to reflect the changes that occurred in Act 153 under State Law HRS 205A, from 125 [thousand] to 500,000 dollars for the valuation between the Minor Permit and the Major, SMA Major Permit. HENKEL: So, discussion on this line item? Leeward? UNGER: Mr. Chair, this is Commissioner Unger. I'd like to start a discussion. EXHIBIT A 44 HENKEL: Go ahead, Keith. UNGER: I'm okay with the raising it from 125,000 to 500,000. If my research is correct, and maybe somebody could correct me, HR[S] 205 was established in 1975, it's now 2017; $125,000 in 1975 probably is equivalent to $500,000 today. I think the point continues to be regardless of the sum, whether 125 [thousand] or if we find something in between 350 [thousand] or 450 [thousand] or $500,000, I think the trump card always will be, regardless of the value, to qualify for an exemption; if there is cumulative effect, then an SMA permit will be required. I'm not too concerned about, and say there is a disagreement and it doesn't go there, I'm not too concerned about everything between 125 [thousand] and 500 [thousand] coming back to the Planning Commissions; to certain extent that may be a good thing because I think we are going to continue our discussion about oversight and how to oversight as a commission, so that may be it. But, but I do believe, I do believe that HR[S] 205A we got our authority from the State Legislature from HR[S] 205A, and it's the spirit and the intent of that statute that we got our authority from. So I'm interpreting that as any amendments thereof. So I would, and I think, Mr. Darrow, you've mentioned it, at some point somebody was talking about a motion that whatever the Legislature decides on HR[S] 205, there should be a motion, or the Commission should have a discussion about it automatically reverts to a change in our rule. So I'm certainly open to the discussion. But as far as the discussion at hand, I'm okay with going from 125 [thousand] to $500,000 when it comes time to review projects for exemption. HENKEL: Thank you. SHIMAOKA: This is Commissioner Shimaoka. I need clarification from Corp. Counsel on what Vice Chair Unger just mentioned regarding the scope of our authority, if that still remains the same. HALL: I guess I need to clarify your question a little bit more. Are you asking what your authority as to set the number or? SHIMAOKA: No, on maybe amendments or things that would arise. I don't have a problem with the amount. HALL: Oh, yeah, yeah, I mean you guys can definitely set the process on what happens when there is a State law amendment you guys can put in place that it should be brought in front of you, you know, as soon as it's put into law, and that way, you know, the Department will be flagged to know that they should just bring in front of you guys and you guys can discuss it right then and there and you can also determine the process that the Planning Commission wants to follow. That is completely within your authority to develop that kind of system. SHIMAOKA: Thank you. HENKEL: Any other discussion? CARR SMITH: Commissioner Carr Smith here. I just want to clarify. I'm not clear exactly what we are talking about right now. There is no motion on the table, is that right? EXHIBIT A 45 HENKEL: There is CARR SMITH: And we just HENKEL: no motion yet. We haven't CARR SMITH: Okay. HENKEL: We were just discussing the changes, and then if someone is ready to make a motion, they could. CLARKSON: I'll make a motion CHURCH: —This is Commissioner Church, and I would move that all references to $125,000 in Rule 9 Special Management Area be increased to 500,000. HENKEL: There is a motion. Is there a second? UNGER: Second. Commissioner Unger. HENKEL: Now we'll have discussion. And I know Mr. Ikeda has been waiting to talk. I'm sorry if we cut you off IKEDA: You know, I, maybe for West Hawaii it isn't a problem, but I think in East Hawaii 500,000 is pretty high. I know the valuation went up, but I think somewhere the line of 300 [thousand] or 350,000, I think, would be a reasonable amount. So I would kind of hope that they would amend their motion to reflect that. Thank you. HENKEL: I kind of agree with Mr. Ikeda, living in the area that I live in. And I also, you know, I hate to be the dissident here, but I feel kind of helpless that we were just having to fall in line with what the State does, and I feel like no matter what we decide, you know, they are still going to have that. But, you know, I feel like the SMA, that area, and our shoreline is like the frontline of our ecology and it's effected even by, you know, development that's miles mauka and much more impacted by, you know, shoreline development, and I just, I feel that we should be making the process more difficult, rather than easier, for development. CHURCH: This is Commissioner Church again. The reason I made the motion was that if, if Vice Chairman Unger's 1975 recital is correct, then we passed 40 -something years, which uncompounded would only be about two percent per year at most. If there was a considerate deliberation some years ago of the $125,000 and it was found to be rational, it would be hard to argue; that's why $500,000 some 45 years later is not. IKEDA: I believe in Hilo, there is a case that's going on right now that's under the $500,000 threshold, but the community is against the project and they are not getting, I believe they are not getting their just cause for hearing, and that's the reason I proposed less. There is EXHIBIT A 46 something going on right now in Hilo. So I would like you guys to reconsider that please. Thank you. HENKEL: Any other discussion on the motion? SELF: Could I, could I interject here a little bit? So the State law is a Minor Permit is anything up to and including 500,000. If the Planning Commission is concerned about, the only reason that figure, the only thing that that figure affects is for the Minor Permit versus a Major Permit. So, it just means that there would, for Hilo, there would be more homes that may qualify below the 500,000, but they would still, the Department would still be looking at the, if it's within the SMA, they are still going to be looking at the environmental impact, which is the whole purpose of SMA Law. So that's, that's what, so if the Planning Commission, Planning Commissions are concerned about the value on in Hilo, then if you wanted the Minor Permits to come before the Planning Commission to determine, then that's another way to maybe make you feel more comfortable, because as it is, you are supposed to be enforcing 205A, you are the authority, the Legislature gave you that authority, so when the Legislature amends 205A, it's still your responsibility to implement that. So rather than, I mean I don't know what the Planning Commission is thinking at this point, but if you didn't want to change it to the 500,000, it's going to be confusing, or if you are going to assign West versus East, it's going to really confuse the issue because ultimately a Minor Permit is up to 500,000 under the statute. See what I mean? HENKEL: Yeah, I think I understand, and what you are saying is that the Planning Commissions we should be discussing eventually how to deal with SMA, whether it should be us or the Planning Director. SELF: Right. Because right now, because the rules haven't kept up with the State law, you have given the Planning Director the authority to review applications for Minor Permits, and the valuation of the project is up to and including 500,000 but right now it's only set at 125,000 in your rules, because it hasn't kept up with the State's definition of SMA Minor Permit. So, it's still at the, the Minor Permit used to be defined as up to and including 125,000, or not exceeding the 125,000. So, the law was passed back in, what, 2011, and it's never kept up with the law. And, honestly, it, we really should be keeping up with these laws that change. I've had things like this happened before and I had to address this in front of a judge, and it wasn't a lot of fun, I can tell you that, where the Charter had changed and the Planning Department had not changed its rules. HENKEL: Okay, I understand that, but I keep thinking back to what Commissioner Clarkson pointed out earlier that, I mean what a burden it would be for the Planning Commission to have to take on, you know, and all this, the back applications and a ton of new work, and I'm not sure how we would arrange that, if we were. And I understand how, you know, the, you are doing this to streamline the process, but that's, it just bothers me that the processes should be streamlined. SELF: And, you know, it's up to the Commissions as to whether or not you want to start issuing Minor Permits or not, but it shouldn't change the fact, the valuation should not be a determination as to whether or not you want to take this on. The valuation has been set by the EXHIBIT A 47 State. And, it doesn't mean that you are going to look, you are not going to look at the environment or the ecology when it's something that's less than 500,000, or 500,000 or less. Same if it's 125,000 or less. They're still going to be reviewing the application to see what kind of impact it will have, if any, on the environment and the ecology. That doesn't go away. So even for exemptions, it's not going to be exempt, if they determine there is going to be an impact. So. HENKEL: Thank you. Then we'll do a roll call vote. JACKSON: Okay. Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: No. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? EXHIBIT A 48 KEALOHA: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: No. JACKSON: And Chair Henkel. HENKEL: No. JACKSON: Okay, the motion carries. HENKEL: Then we'll move on to the next item. Is everybody good to go? KAY: Chair Henkel, we were told that we were going to try to take a break at one for lunch. Is that still in the process? HENKEL: Yes, I was just informed that lunch has been delivered here and I think in Kona also. So, is a half hour long enough? KEY: I'm getting a little bit longer sign from, oh, I'm sorry, hold on, they are having discussion here. UNGER: This is Commissioner, oh, [Inaudible short discussion about the lunch break.] Mr. Commissioner, this is, Mr. Chairman, this is Commissioner Unger. We'd like to continue and try to get through this. But, we are going to defer to you. It's your call. HENKEL: Shall we do a vote? How many more items do we have to decide on? UNGER: We've reconsidered. Let's break for lunch. HENKEL: Yeah, because we've got quite a few items and I don't think the Council allows us to do a working lunch and eat up here at their desks. So, let's cut it to 25 minutes. So at 1:30, we'll reconvene. UNGER: Okay, thank you. HALL: Also, just a reminder, all Commissioners, just talk about your bentos, please. Do not talk about rule amendments while you have your lunch. Thank you. EXHIBIT A 49 Chair Henkel called a recess at 1: 06 p. m., and the meeting was reconvened at 1: 33 p. m. HENKEL: Okay, Commissioner Unger, are you there? Is your speaker on? UNGER: Yes. Yes, we are ready to begin. HENKEL: Okay, I have to announce that we just found out that due to a scheduling conflict we have to give up the room here for 15 minutes at 2:30, so from, I'm going to go ahead and announce ahead of time that there is going to be a break from 2:30 to 2:45. So, but we can proceed. Jeff is ready to go. We are all set. Here we go. DARROW: Thank you. We'll try to get through this as quickly as possible. Our next portion that we are looking at is 9, Rule 9-8 (c), which is this, this is relating to the retroactive language. Again, it states, "Special Management Area Minor, Use or Emergency Permits or exemptions validly issued by the Department or the Commission, subsequent to any amendment to Chapter 205A, Hawaii Revised Statutes, but preceding any supportive amendment to this rule shall continue to be considered valid." HENKEL: Thank you. Is there discussion and/or a motion for action? DARROW: If I could, just really quickly. Again, this is not just in relation to this particular situation but it applies to any future as well. Thank you. HENKEL: Thank you. Discussion, Leeward? UNGER: No discussion. HENKEL: Thank you. Windward? Then we should act. CARR SMITH: Chair Henkel? HENKEL: Yes, go. CARR SMITH: I'd like to make a motion to approve the change in 9-8 (c) as written. HENKEL: It's been moved to approve 9-8 (c). This was Ms. Carr Smith? CARR SMITH: Yes. HENKEL: Is there a second? DELA CRUZ: Second. EXHIBIT A 50 HENKEL: It's been moved and seconded to approve 9-4 (c) [sic], 9-8 (c), sorry. Do a roll call vote. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: Aye. EXHIBIT A 51 JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. HENKEL: Next item. DARROW: Thank you, Mr. Chair. The next item is clarification of the authority section in Rule 9, this is Rule 9-9. And again, this was just to, as Maija read earlier, it just had a very general statement in Rule 9-9, this attempts to clarify the authority that the Commission has granted to the Department so it's clear under this section what those authorities are. Thank you. HENKEL: Any discussion? CARR SMITH: This is Commissioner Carr Smith. I would like to hear the way it reads now again, if you don't mind repeating yourself, Maija, or Jeff? JACKSON: Currently, Section 9-9 says, "All development within the Special Management Area shall be administered through the Department under this rule pursuant to the objectives and policies and the Special Management Area guidelines as provided by Chapter 205A, HRS." DARROW: Commissioner Carr Smith, did you want to hear the proposed language as well? CARR SMITH: I do have it in front of me. DARROW: Okay, thank you. CARR SMITH: Thank you. JACKSON: Yeah, just to clarify, we're proposing to keep the language that's currently there, which I just read, and add that new section to it just to further clarify. HENKEL: Do we have a motion for action? CHURCH: This is Commissioner Church. I would move that the additional language that has been proposed for Rule, for Paragraph 9-9 be approved. HENKEL: Is there a second? KEALOHA: I'll second. EXHIBIT A 52 HENKEL: Okay, it's been moved by Commissioner Church and seconded by Commissioner Kealoha to approve 9-9. Maija? Oh, I'm sorry, discussion, please. Then we'll vote CARR SMITH: Commissioner Carr Smith here. I have HENKEL: Go ahead, Ms. Carr Smith. CARR SMITH: some, sorry, did I interrupt someone? HALL: No, go ahead. CARR SMITH: Sorry, it's so hard to tell if somebody is talking over there. The testimony that we heard this morning seems like valid concerns, and I just want to make sure that we are not relinquishing any new responsibility. That's all. CLARKSON: I have a question. Since we're leaving management, administration, interpretation and enforcement up to the Director, what processes are there that a member of the public could use to object or appeal or otherwise raise the activities that would go along with all of these actions? Is there an appeals process or any other such things that could be brought to bear? DARROW: For a majority of these processes, for example, an exemption determination or the issuance of a Minor Permit would be, right now currently, as mentioned before, it's appealed to the Board of Appeals. That's the process that when the Planning Director makes a determination, if the public decides to appeal, it goes to the Board of Appeals. There has been concern and issues raise that that may not be the right process, that maybe a more appropriate process would be to have that be brought back to the Planning Commission. And we're trying to work that out again through a major rule change, whether it's going to be an order to show cause or whether it's going to be an affirmation process of the Director's decision, and then from there the appeal process would go to Third Circuit Court. That's currently how it is. A majority of the matters that deal with the SMA Use Permit at the end of this section, "to administer, interpret, and enforce terms, scope and conditions set forth in Special Management Area Use Permits issued by the Commission." So that, those are conditions issued by the Commission. What we do is we enforce those. So if an applicant ends up violating that, we bring him back to the Commission, so they'll have to address that issue with you folks. CLARKSON: Is there any way a member of the public can object if they believe the Director is not enforcing, is failing to take action and should? JACKSON: Commissioner Clarkson, I believe HRS actually has a section where any party can bring a court proceeding upon the Commission or the Department, if they are not fulfilling their duties within the SMA. CLARKSON: Thank you. EXHIBIT A 53 HENKEL: Any other discussion on the motion? UNGER: So they can also, they can also, instead of going to Third Circuit Court, they can also appeal to the Board of Appeals, correct? DARROW: Any decision made by the Director would be appealed to the Board of Appeals. So, the question is, this is almost in regards to a lack of a decision or a determination. It appears that Section 205A-33, yeah, this might not be the correct section. I'm not, I would think that, I don't know if I recall the situation like that, I mean, normally the, what will happen is the public will submit a complaint to the Planning Department regarding whatever activity it is, and the Department follow up on that; if they don't agree with the outcome of that, if they feel the Director did not deal with the violation appropriately, then they could appeal that decision. Again, but I don't recall any situation where somebody issued something to the Planning Department, saying you didn't fulfill your duties. And I'm just not clear on a process that that person would go through. I would think that they would always have the opportunity to take it to court. But again, I'm not sure about an intermediate process prior to that. MIYASATO: I have a question, Chair. I guess what it kind of seems like is due to some of the testimony that was provided, I guess the question may be, some Commissioners are kind of wrestling with is the previous language compared to the introduced language. Are Commissioners giving up any authority? Or what difference is it in the additional language that the Director has over the Commission that he doesn't have now? DARROW: I believe that every, the only thing that I would say that's a little different that we've added in there, is the word "interpret" and you won't see in another section of Rule 9. And the reason why we added that word is because there's been questions regarding the authority of the Planning Department and the Planning Director to interpret what was approved under the Special Management Area Use Permit. And what happens a quite number of times is somebody will come in, they have an SMA Permit, Major Permit, for a development, and they have a question whether or not a particular portion of their project is approved under the SMA or whether it's not and needs an amendment to go back to the Planning Commission. And so the Planning Director has been doing this just as a matter of practice for years, as long as I've been with the Department, just as a matter of, you know, everyday responsibility answering whether or not it's covered or needs to come back in for an amendment. That would, that's the language that we've added to cover that responsibility that the Director has been doing, rather than just saying someone asks, is this covered, and we say we need to agendize it and ask the Planning Commission, because a lot of times it's pretty clear; you read the Special Management Area Use Permit and it states what that development is permitted for, and then we interpret accordingly. And there were many times that we've told applicants that it's not covered, you need to go back to the Planning Commission. SELF: I can add to that. We had a case recently — I don't know if you, well, they wouldn't remember because it wasn't before you, it was before the Leeward, right? But, for Leeward Commission, there was the Kalea Homeowners Association, this is in the Waikoloa Resort area. The Waikoloa Resort, the entire resort, had been issued a Major SMA Permit way back when, and it was all for resort type uses. So, then you've got an association that wants to simply build a EXHIBIT A 54 pool, weight room or whatever, all these were hotel amenities as well for the resort houses. So the argument was because the rule provides exactly, like, if you look at Section 9-10 (d), you'll see there the second line there says, "The proposed use, activity or operation does not constitute a development or is exempt from the definition of development; or A Special Management Area Minor Permit is being issued; or A special Management [Area] Major [Use] Permit is required," it used to say, "or Return an incomplete application with a written explanation or its deficiencies." Nothing in there says that the Director specifically during an assessment determines whether or not a proposed action complies with the existing SMA Major Permit. So what we wanted was to add some clarity, and if you don't want it this way, then if there is anything that comes up in that situation, it could come back to the Commission. But, it's either got to be more specific about what the Planning Director's authority is or, if you want that authority yourselves, it doesn't matter to the Department, it's just that that's we've been up against is that, well, they read these rules very, you know, the attorneys wordsmith, they get into it and they go, aha, there is a loophole, that he doesn't even have the authority to make a determination as to whether or not the existing SMA Major Permit apply or covers the proposed action that's going to, that's been applied for. So, that's one of the reasons this came up. HENKEL: Any more discussion on the 9-9? CLARKSON: I have a question. I mean we are delegating our authority to the Director to manage these affairs. Is there any way that we can reserve the right to review all of these activities, or the members of the public can petition the Commission to review the actions of the Director? So that at least there is a little bit of feedback, you know, we didn't just delegate it and then not have a mechanism whereby we can actually return to the, the control to ourselves in a specific case. DARROW: Excuse me, okay, someone had asked about that a little earlier HALL: Sorry, Jeff, can I interrupt you just for a second? And if you guys want to later on, Maui actually does, Maui County has a rule that has the actual, all the SMA appeals come to the Commission. So I think that's similar to what you are saying? But you can look at it at another time and see if that's kind of what you guys, I mean, and also you could implement that today, if you wanted to. But, they do hear all the appeals from the SMA at the Commission. JACKSON: Mafia, we weren't, we weren't sure whether that appeal language could be implemented today because I don't know if it was on the agenda. So we were, you know, that came up, and it was a really good idea, in Mr. Vitousek's letter. It's something we'd been wanting to do, but we were trying to hold that until the major rule update to change the appeals from the Board of Appeals to the Planning Commission. SELF: The other problem is Maui County's Charter doesn't say that any final decisions of the planning director shall be appealed to the BOA. That's the other thing we are weighing it in, on. Maui is different. HALL: Got it. EXHIBIT A 55 JACKSON: As far as Commissioner Clarkson's suggestion, that was really good of giving the public the ability to petition, if there is some action that the Director is taking, to petition and then go before the Commission. As far as the other suggestion, though, like the Commission reviewing all of the Director's determinations, we'd have to be careful of that as far as timelines go because the Director has to make decisions within a certain period of time. So, in order to have the Commission review those decisions before they are made, it would become a timing issue. CLARKSON: Well, I wasn't talking about reviewing all decisions of the Director, but having the ability to review any one of them at any time, should we so desire. DARROW: If I could also bring to your attention that in HRS 205A-30, this is titled "Emergency and minor permits," it says, "The lead agency shall file notice of special management area minor permits in the next available issue of the periodic bulletin of the office of environmental quality control." So our staff planner that works on SMA Minor Permits files this report for each periodic bulletin, so she's constantly putting that together as part of that. So that's a type of reporting that's required under 205A. UNGER: This is Commissioner Unger. I think this is a really important discussion, and it leads back to Michael Matsukawa's testimony this morning where we are given this, we have given this authority to the Planning Department and we really have no understanding or idea or any feedback from the Planning Department, and I don't know, you know, if we actually need to change our rule because I can see the Leeward Planning Commission talking to the planners and say, hey, at the end of each meeting, we want an update on SMA issues, what has come in, what has been done, what has been the difficulties, what has been the challenges, what, what did you approve that you, that you had some challenges from the public or from the applicant, and at some level have some kind of either formal or informal report from the Planning Department as to what is happening. And so, again, I don't know how, what format that takes, if it's actually as a rule change, but starting at the next meeting, you know, I would like to see that on the agenda in a form of an update, what is happening with SMAs, Minors, exemptions, what has been happening. YEE: Jeff or Maija, do we issue a print publication of what applications we have for SMA? Is it possible to do emails of our decisions? But don't we publish monthly right now? JACKSON: We publish every application the Department receives in the newspaper. Although, I don't know if that includes assessment applications, yeah. And I know a long time ago the Commission did get a copy of all of our decision letters and updates on annual publish report for SMA Major Permits and other permits issued by the Commission. So, that's something that we could start doing again. YEE: Yeah, I mean, part of it, I don't want to create brand new systems necessarily for just, you know, we want to figure our good reporting. It could be if we had the list of what's been published and that could get reviewed possibly at the end of a meeting. If there was a practice before of sending out our decisions, maybe that's something we should revisit. Again, I need feedback from staff on what really works. EXHIBIT A 56 DARROW: We could, we could revisit what we used to do. I think what happened was it was in a public folder that was passed around with the Commission, and it got to a point that they just felt like it wasn't necessary anymore, and so we stopped with that. Basically, it would just be, like what Maija said, reporting on annual progress reports for SMA Majors, information regarding decisions we had made. But, we can definitely look at that. Commissioner Unger, we could consider the placing it under Administrative Matters in the agendas, and kind of refine the process as we go to be able to get clarity from the Commission as to what exactly they'd like to see, and so we can come up with something, a type of reporting that would be acceptable to the Leeward and Windward Planning Commissions. HENKEL: Thank you. I had already penciled in SMA updates under Administrative Matters. Anymore discussion on the motion? UNGER: Do we have a motion yet? We do? Oh, okay. HENKEL: Yeah, by Commissioner Church, seconded by Kealoha, 9-9 on the clarification of authority. Could we re -read the motion? JACKSON: The motion is to approve as recommended by the Planning Director the amendment to Rule 9-9 to add a new section related to the authorities granted to the Department. HENKEL: I think we're ready to vote. JACKSON: Okay. Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: No. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Nobriga? NOBRIGA: Aye. JACKSON: Commissioner Shimaoka? EXHIBIT A 57 SHIMAOKA: No. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. HENKEL: Moving on. DARROW: Okay, next section. If you guys are okay with this, I'm thinking we go for the whole thing. This would be the Assessment section that we were looking at. In your Background Report this would be on Page 5 starting up at the top with c) Rule 9-10(b), this would be the new Review and Acceptance; and then come down middle of the page, d), which is the Filing Fee, increase of 50 dollars; [e)J the increase in time for review; and then on the following page it would continue on and then lastly with f) you have the Short Form. You know what, let's just, yeah, let's just go with c), d) and e), and then we'll do the Short Form separately, and then we'll only, we'll have one more proposed amendment after that. So this would include Rule 9-10(b) where we are bringing in line the review and acceptance process for assessments similar to our permits submitted in Chapter 25, the Zoning Code. Again, Rule 9-10(b)(12) Assessments — Filing Fee, we are adding a $50 filing fee, and lastly 9-10(d) the time to complete EXHIBIT A 58 review, which would be increased from 35 to 60 days, and this passes on to the next page. E is part of the next page as well. You guys okay with that? F, we'll do f) separately. HENKEL: Discussion? CLARKSON: I'm confused. You said, "f) separately" as in f) already been done? DARROW: No, f) separately, so we'll address the Short Form assessment separately. No, no, I'm sorry, f) on Page 6 HALL: Yes, f) has been done already. That's the change from 125 to 500. DARROW: On page, I'm sorry, I'm referring to f) on the Background Report, which has the Short Form Assessment. HALL: Fabulous. DARROW: I thought you folks were looking at theI know it's confusing, sorry. UNGER: Mr. Chair, I recommend we take it one item at a time, and start with 9-10(b). HENKEL: Was that b in bravo? UNGER: Yes. DARROW: Okay, this would be 9-10(b) Assessments — Review and Acceptance. The Planning Director has added the following to Rule 9-10-b, I mean, (b): "For proposed uses, activities or operations that are subject to an assessment, the applicant shall submit to the Department a Special Management Area Assessment (SMAA) on a form prepared by the Department. The review and acceptance of the assessment application shall follow the procedures pursuant to Section 25-2-3 (Review and acceptance of applications) in Chapter 25, Hawaii County Code." HENKEL: A motion and/or discussion? UNGER: Jeff, to clarify, is there no timeframe right now? Is that why this is being, there is no timeframe to accept an SMA Assessment application? DARROW: The current process is that the planner has 35 days to review and come up with a decision. The concern is, is that, there are many times that we come up to the 35 -day deadline and they reject the application, which isn't fair to the applicant, as well as isn't just good process. So, we want to have it in line with our current practice in the County Code. So what would happen is an applicant would submit on Day 1, we would have 15 days to reject or accept, and then by Day 60, we would make a decision on that, but it wouldn't be a rejection. It would be a Minor Permit, exception, I'm sorry, exemption, or requiring an SMA Use Permit that will need to go to the Planning Commission. EXHIBIT A 59 UNGER: Great, thank you, and I think this is a good idea. It breaks up what can be a tedious and long process, whereby, well, Number One, we'll be in conformity with Chapter 25 of Hawaii County Code, which relates to any application received by any department, basically states that after 15 days the applicant has to have a response whether it's accepted or not. So that just gets the process going. So I'm okay with that. HENKEL: Is there a motion? UNGER: If there is no more discussion, I can make a, I'll make a motion. "For proposed uses, activities or operations that are subject to an assessment, the applicant shall submit to the Department a Special Management Area Assessment [SMAA] on a form prepared by the Department. The review and acceptance of the assessment application shall follow the procedures pursuant to Section 25-2-3 (Review and acceptance of application) in Chapter 25, Hawaii County Code." HENKEL: Is there a second? CHURCH: Second. Church. HENKEL: It's been moved by Chair Unger and seconded by Church. CHURCH: Commissioner Church, right. HENKEL: Commissioner Church. Discussion? Vote, then. JACKSON: Okay. Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Nobriga? EXHIBIT A 60 NOBRIGA: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, motion carries. HENKEL: Okay, now we'll move to 9-10(b)(12). DARROW: Thank you, Mr. Chairman. So, this is a simple change. As mentioned earlier, we currently do not have a filing fee for SMA Assessment. We're just proposing a minimal fee of 50 dollars. Thank you. UNGER: Excuse me, can I interrupt? This is Commissioner Unger. I think, Jeff, you omitted, if you go to 9-10 Assessment, Number (9) shoreline survey. I think you're talking about inserting a 100 -foot boundary for the Planning Department to consider any exemptions. You had it in SMAs but you, but in your presentation, you said we forgot to add it for, to the SMA Assessment. Is that a change that you're proposing? EXHIBIT A 61 DARROW: This will be a change we are proposing and we can address that when, if it's okay with the Commission, if we could address that at the time we address that section. We can address it for both the Special Management Area Use Permit procedures, as well as the Assessment procedure. HENKEL: Is that okay with you? UNGER: Yeah, that's fine with me, Mr. Chair. HENKEL: That's fine. DARROW: So, again, this additional change to Rule 9-10(b)(12) for Assessments, just a $50 filing fee. Thank you. HENKEL: Is there a motion and/or discussion? SHIMAOKA: I motion that we approve the $50 filing fee, Item (12). Commissioner Shimaoka. HENKEL: Is there a second? CARR SMITH: Second. Carr Smith. HENKEL: It's been moved and seconded to approve the $50 filing fee on 9-10(b)(12). Let's vote, or discuss, I'm sorry. I think we're good. JACKSON: Okay. Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Nobriga? EXHIBIT A 62 NOBRIGA: Aye. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. HENKEL: Let's move on to 9-10(d), which increases the time for review. DARROW: Thank you, Mr. Chairman. Rule 9-10, Rule 9-10(d), this is the time to complete review. This continues on from our previous Review and Acceptance portion where, "The Director, within sixty calendar days after the receipt of all filing requirements or within a longer period as may be agreed to by the applicant, shall notify the applicant in writing that: The proposed use, activity or operation does not constitute a development or is exempt from the definition of development; or a Special Management Area Minor Permit is being issued; or a Special Management Area (Major) Use Permit is required. If the proposed use, activity, or operation is less than $500,000 in value and the Director fails to act within the sixty calendar day period or within such longer period as may have been agreed to by the applicant, the proposed use, activity or operation shall be forwarded to the Commission for its consideration. The notice and hearing procedures and action shall be the same as under Section 9-11(c) through 9-11(f)." EXHIBIT A 63 HENKEL: Thank you. Any questions of staff? And discussion and a motion? RAFFIPIY: I have, I just CLARKSON: I, why, why didn't I just see what you, oh, there. RAFFIPIY: Question as a point of clarification for this Item Number (d). We're not voting on the 500,000 threshold, I mean, we're voting on everything else except for the 500, right? HALL: That's correct. RAFFIPIY: Thank you. CARR SMITH: Chair? Commissioner Carr Smith here. I'd like to make a motion to approve the changes in Rule 9-10(d), like dog, for all changes with the exceptions of the ones that we've already approved. HENKEL: Is there a second? SHIMAOKA: I second. Commissioner Shimaoka. HENKEL: It's been moved by Commissioner Carr Smith and seconded by Commissioner Shimaoka to approve the changes in 9-10[d], delta, in the time for review. Discussion? UNGER: This is Commissioner Unger. Yeah, I have a problem with extending it to 60 days, but I would like to, I mean, this is the purpose to have this discussion. And I understand the Planning Department's situation here. When Jeff made his presentation—when Jeff made his presentation, I guess one of the issues is that you don't hear back from the, some of the agencies that you are petitioning, like Public Works or SHPD, etc. Is that correct? DARROW: We, I mean they're very good at responding. It's just on a normal timeframe for response is approximately 30 days. UNGER: Okay, so here's an idea, and maybe I'm not sold on it completely myself, but it's worth discussion. Kind of the gist of all of these rule changes or certainly overriding discussion by the Commissioners is the fact that we have the overriding authority and we are delegating and how do we become more, how do we have more insight or more participation, I guess, in these decisions. Well, if you read the way this is stated now, I really don't think any changes are needed because if the Director for whatever reason does not respond within 35 days, then I slide all the way down to the last sentence in the paragraph, then the "proposed use, activity or operation shall be forwarded to the Commission." So that's us. And maybe that's not such a bad thing where once in a while we do hear some of these applications almost on a case-by-case basis. I, to a certain extent, I think if you extend it out 60 days, it will take 60 days; if you keep it at 35 days, it will take 35 days. And, if it doesn't take 35 days, then why not, why not put it on the agenda, and we hear it and we make a decision at that time. So, anyways, it's just a, it's just EXHIBIT A 64 a discussion, and again a way of perhaps getting the Commission involve more on a case-by-case situation, especially if the Planning Department for whatever reason is unable to meet this timeframe. So, it's just another option to discuss, rather than extending out 60 days. DARROW: If I could HENKEL: I think DARROW: I'm sorry. HENKEL: I'm sorry, I think that's a really good point, although it could, you know, depending on the timeframe of the application, it could be another 30 days until the Commission meets, so, I mean, it could end up being 60 days. But, I like the point you made about just the Commission kind of keeping in touch. UNGER: Well, that's, and I did run the various couple of numbers also. By the time you extend out 60 days, why not just spend 30 days making a background recommendation to the Planning Commission and then we are on the next agenda. DARROW: If I could chime in on this one. So, if you look at the rule, it refers to 9-11(c) to (f); that basically is the process for someone to submit an SMA Major application to the Commission. So it's not as simple as we didn't meet our deadline, we bring it to the Commission. They have to post the sign under 9-11(c); they have to notify surrounding property owners to give them the opportunity to file a contested case; and then at that point, most likely, there's no deadline. I mean, we have 90 days to bring it to the Commission because we still have to present; we have to prepare our background, recommendation; send it out for comments to all the agencies; and then come to the Commission. So it's, it's kind of a tough situation that's the, the 35, 60 days, if it were to, if you were to keep it at 35 and then the applicant wasn't willing to extend the time and they say I want to go to the Commission, then we have to inform them that you have to go through this process to go through the Commission, which is the same process as bringing in a Special Management Area Use Permit to the Commission. So, it's not as simple as we might hope. UNGER: Okay, that's a good clarification. I didn't, I didn't realize that it was, once you, once the decision is made to go to the Commission, then you go through the same process as if it were a SMA Major application, SMA application. DARROW: Correct. HENKEL: Thank you. Anymore discussion? DARROW: If I might just chime in for a second. Also, the request is being made, too, because, and believe me, our goal here isn't to extend our time so we can go to 60 days and issue at 60 days. Our goal really is to expedite the process. And, by doing the Short Form, by doing, we are in the process of getting these rules changed so we can go out and train our staff on both Hilo and Kona to start doing assessments, so it's not all on the shoulders of one planner, and also to EXHIBIT A 65 assign a planner in Kona to begin doing this type of work as well. So, our goal is to be able to bring a lot more staff involved in this process, and we're hoping that this is going to expedite the process as, potentially, so let's hope CHURCH: This is Commissioner Church. Having been through this process as a developer any number of times, I'm not adverse at all. So, lending a little more slack to the system to the Planning Department, I'll be supportive of this. HENKEL: Thank you. Shall we vote? JACKSON: Yes. Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Shimaoka? SHIMAOKA: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. DARROW.• He said aye. JACKSON.- Did he? KEALOHA: Aye. JACKSON: Okay, I hear you. Commissioner Nobriga? EXHIBIT A 66 NOBRIGA: Aye. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Miyasato? MIYASATO: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. UNGER: Mr. Chair, we have two Commissioners that have prior appointments and are going to be leaving. So, I want to make sure we still have a quorum, is that correct? HENKEL: Yes. Also, in UNGER: Commissioner HENKEL: Go ahead. UNGER: Commissioner Nobriga and Commissioner Shimaoka are leaving. HENKEL: Okay. Thank you both for your input. In five minutes we need to vacate the room for 15 minutes, so I'm thinking about just pausing here and taking a 20 -minute break. EXHIBIT A 67 Chair Henkel called a recess at 2:30 p.m., and the meeting was reconvened at 2:48 p.m. HENKEL: Convening again on the Windward side. Are you guys ready, Commissioner Unger? UNGER: Yes, we're ready. HENKEL: Okay, for your information, Commissioner Miyasato had to leave, so we are down to ten. We still have a quorum. And, proceed, Jeff DARROW: Thank you, Mr. Chairman. We're getting close. This will be the section KAY: —Jeff, sorry to interrupt, Jeff We have a frozen picture of school children on our video feed. Is there any way to refresh that video feed? DARROW: I don't know. Just picture us as little school children for now, if that's okay. KAY: I always do. [Laughter.] DARROW: All right, so, this—yeah, they are kind of referring to the—so if you could refer to your Background, Page, let's see, Page 6, and this is 9-10(i) Assessments – [SMA] Short Form Assessment. So we'll just go through this section. It's going to be kind of long but it's all together: "The Department may create an SMA short form assessment to be used by the Department to assess uses that may result in a determination that the proposed use is exempt, i.e., single family residence, minor grubbing, or accessory structures. The short form assessment may include, but not be limited to the following information: The tax map number for the property; A plot plan of the property, drawn to scale, with all proposed and existing structures shown therein;" proposed or, I'm sorry, "Description of proposed action, including the extent of land clearing, if any;" and then lastly, "Description of any known historical sites, anchialine ponds, wetland, or sandy beach, and any other pertinent information. In case of a single family dwelling, a Building Permit application may suffice as the plot plan required under (2). The Director may require a full SMAA if it is determined through the short form assessment review that further information is needed from the applicant. The Director may impose certain conditions with the exemption determination to assure that the proposed use, activity, or operation does not have a significant adverse effect on the SMA." Thank you. HENKEL: All right, any discussion or questions of staff on 9-10(i) Short Form Assessment. UNGER: This is Commissioner Unger. Jeff, can you explain why, it's my understanding that a short form assessment application was available at some time to the public, is that correct? And then you went away from that, and now it's just a short form assessment that's used in-house, internally by the Planning Department; in other words, you get an SMA assessment application and then I guess what's happening now is you are transcribing it on to a short form. So what, was there a short form that was available to the public previous to this? DARROW: There, at one time, there was a short form assessment application that basically had a number of exemption activities, and an applicant could come in and if they were proposing one EXHIBIT A 68 of those exempt activities that was listed on the form, they could check it and then submit that. Again, the problem that they ended up running across was there was additional information that was needed by the applicant to be able to process the particular application form. It would normally be something that, the one holdup would normally be the landowner signature. There came a point where, and the other problem that they ran into was that certain people would use that form and say their project was exempt; when they would come in, staff would look at the actual project, and it wouldn't be an exempt project. So the determination should actually be made by the Department whether an activity is exempt or not. It shouldn't be, I mean, it could be left up to the applicant, but again, what was happening is there was conflict with that. This process that we're trying to do is to make it so that it would be done at the time the applicant comes in for review by staff so that we would have a record of the determination made by staff We could keep a record in our file and make a copy for the applicant. That way, again, later on, because as mentioned previously, there was a point where the backlog became pretty great that the Planning Director ended up taking back the short form application and just issuing a memo to staff, saying these are, these activities are exempt, you can make this determination over the counter. And there was no record of that exempt determination. It was just verbal. And so, we felt like we really needed to have something written as far as an exempt determination. So, hopefully, this process again will streamline, expedite, and be able to help for the record purposes for the exempt determinations. UNGER: Okay, thanks, that helps. And just to clarify, too, so the timeframe, so someone comes in, fills out an SMA Assessment, and you look at it and say this looks like it's a candidate for an SMA short form assessment at that time, and so what is the timeframe to get back to the applicant? Is it the same as SMA Assessment application? I mean, so it's the same timeframes that we just extended to 60 days, is that correct? DARROW: Hopefully, what will happen in this process is if somebody is coming into the counter, they would not need to do an assessment application. They would know by, staff would be able to say this is an exempt activity and they would not need to go through the assessment. What happens is some applicants just go ahead and submit an assessment application on their own. If that application is an exemption, we would just turn around within the 15 -day period, and I don't think we'll return the assessment application, but we would fill out the short form and send it back to them as an exempt activity. That should be done within the 15 days. UNGER: Okay, okay, well, sounds interesting. Sounds, it sounds like it would certainly expedite those cases that seem to be on the surface exempt. HENKEL: Thank you, Mr. Unger. Is there any other discussion or questions or a motion? CARR SMITH: Chair Henkel? HENKEL: Go ahead. CARR SMITH: Commissioner Carr Smith here. I'd like to make a motion to approve the changes set forth in Rule 9-10(i) as suggested. EXHIBIT A 69 HENKEL: Thank you. Is there a second? DELA CRUZ: Second. HENKEL: It's been moved by Commissioner Carr Smith and seconded by Commissioner Dela Cruz. Discussion? CLARKSON: Yes, Commissioner Clarkson here. I'm also concerned about the lack of a timeframe within this section to determine whether a short form is going to lead to a full assessment or not. Did I miss something or is there a timeframe in which the applicant is going to be informed by the Director that he will or will not require a full SMAA? DARROW: There is no timeframe. This is something that is not submitted by the applicant. This is, this is something that's going to be with the staff at the counter. CLARKSON: Oh, I see. DARROW: And, what will happen is when they come in and they look at the list of exemptions, if it's a single-family dwelling, for example, they'll check off single-family dwelling, they'll just do the simple review on the second page, which is basically zoning, the State Land Use zoning, whether or not there is any SMA permits on the property, the simple review. If through that review there is no issues, they'll just make a copy of this and give it to the applicant. If through their review, they find out that there is possible historic sites on the property or other issues that may require more detailed review, at that time they would ask the applicant to please submit an SMA assessment application. So, it should be done right at the time the applicants come in with their proposal. UNGER: The changes don't state that, so maybe we can state that, not at the time but ten to 15, maybe 15 days, and certainly if it happens at that time, fine, but right now it is an open, right now you, that the fault is an SMA assessment it'll be, the application will be accepted in 15 days and then within 60 days the applicant will get a decision from the Director. So, I mean, if you are saying, Jeff, that the intent here is to have an answer at the counter, I'd like to see an answer by. [Inaudible due to loss of Internet/audio connection for six seconds.] HENKEL: Uh, we lost you. Leeward, are you still with us? [No sound for 20 seconds.] We are going to recess until, oh, here they are. We see a picture again. We lost you for a minute. Do you have audio back? UNGER: Can you hear me now? HENKEL: Yeah, and you're going to have to start over again, I'm afraid, we UNGER: No problem. I think then that is the same concern, well, Jeff is saying that there is, that this SMA short form will essentially be determined at the counter. Planning Department personnel would come up, meet the applicant, they look at the SMA assessment, they'd say, hey, you qualify, based on this information here you qualify for a short form assessment. So EXHIBIT A 70 DARROW: If I can clarify UNGER: —our discussion is if that doesn't happen at the counter, how many days are we talking for a determination to be made that the SMA assessment should be placed on the short form and considered that way. DARROW: Aloha, Commissioner Unger, I understand your question and I, it's, I'm not sure how to deal with a timeframe on this because the intention again is for this review to be done at the time that, it's going to be done by all the Land Use Plan Checkers that are at the counter during the review of all the Building Permits and permits that come in to the Planning Department. If they, if this permit is within the SMA [Inaudible due to loss of Internet/audio connection for 30 seconds] — UNGER: that maybe could be reinserted? DARROW: Commissioner Unger, unfortunately, we just got you back. So, we missed everything that you just mentioned. Let me, if I could just clarify again. The intention of this form is to be at the counter with all the Land Use Plan Checkers. There's approximately three to five Land Use Plan Checkers at the Hilo and Kona counters, and so when an applicant comes in and their Building Permit or whatever application they're doing is located in the SMA, then the staff person at that time at the counter will be required, if they feel that they meet one of the six items of activity to be able to fill out this form. It shouldn't be a come back later kind of thing. It should be, they just do it right then at the counter. And as mentioned, if somebody submits an assessment, and our staff planner that does assessments determines that it's an exempt activity under the Short Form, within that 15 -day review period they will, they will respond with that determination. And that's because it's not falling under the Short Form section; it's falling under the Assessment section at that point, which says they have to respond within 15 days. UNGER: So that's the CLARKSON: Go ahead, Commissioner UNGER: [inaudible] timeframe then. So within 15 days of submitting an SMA assessment, a determination will be made, if it, if it qualifies for an exemption and an SMA short form assessment. CLARKSON: I have a question, or perhaps a statement. I see this now, now that I understand that it's not a short form that's filled out by a member of the public, or an applicant. It's just an administrative screening device. I don't even know why this is in our rules. You guys can come up with whatever, you know, forms you need to internally to determine whether, initially whether an assessment will be required or not. But, I don't see why this whole section about short form assessment needs to be in the Commission's rules for SMA oversight. DARROW: What I think we were doing, this was already in the Commission's rules, and we were just adjusting it accordingly to make it a more effective process because the process EXHIBIT A 71 previously wasn't working correctly. But, if that's the Commission's direction, we can remove it. SELF: I think it's better to show that they, that the Commission is actually giving them this authority to do this, because otherwise we're going to end up in the same situation I described earlier. So as long as your rules give, delegate that authority to them, it's in here, then it can't be questioned. CLARKSON: I mean in my view in the section we just adopted where we hereby delegate "to the Director the authority to process assessments, determinations and conditions regarding exemptions, issue and enforce Special Management Area ... " and therefore, we are basically telling the Director and the Department to figure out how to do these, evaluate assessments and exemptions. I personally just don't see why the details of that administrative procedure need to be in our rules. JACKSON: Chair [sic] Clarkson, there's other sections in the rule that kind of lay out the application requirements for a Use, SMA Use Permit, and application requirements for an SMA Assessment form. So, it doesn't only serve the Department in knowing what an application form should have in it. It also serves the public to know that there is this short form process that can be used and what's expected of them in order to use that short form process. CLARKSON: I mean I see an applicant or a potential applicant with a Building Permit coming up to the counter and saying I want to submit my Building Permit application, and the planner says, well, where is it, and they verify that it's not near a shoreline or it's a single-family residence, they verify all of that. They go through and check all the boxes on your internal form and say, okay, at this time we do not believe you need to submit an Assessment, and they say thank you, and you accept their application, and that's that. DARROW: Well, what's happening in the process is we're making a determination of exemption. So that's what we're doing by that form, which is the authority granted to the Department from the Commission. And, so again, your point is valid that this is a form that the Department has created to make this determination. It can be in there. It doesn't need to be in there. And, Maija's point is well taken, too, that it's something that the public would know, be informed about this process that they should expect when they come in, if their property is in the SMA, that it may be exempted at the counter versus having to submit an Assessment. That's the clear problem that we're looking at is that somebody may just go ahead and submit an Assessment when they wouldn't need to. They could just come to the counter and be exempted at the counter. CLARKSON: Well, when is a Building Permit applicant normally told they need to submit an Assessment? I mean, you are saying that members of the public just fill out Assessment forms under the previous section and submit them without anybody asking them to? DARROW: They would be, normally they would come in, be informed that their property is in the Special Management Area, and that they would need to, to be able to proceed with their permit application, they would need to file an Assessment. Now, again, previously there was a EXHIBIT A 72 short form that they would fill out, but again we ran into problems with that, and then it got to the point that there was an in-house memo, that's not in here, but, basically, the Director gave the authority to the staff to make determinations of exemption, I'm sorry, not the Director, he just gave us direction to make the exemption call at the counter. But again, the problem we had with that was that people would say they were exempt at the counter, yet we had no documentation, we had no record of that exemption. And, there were, not many times, but there were a few times where they did way beyond the work that would have been exempt, and they said that they were exempt because they were told they were exempt at the counter. And so, again, we're trying to make it so we have a process in place that we have a record that makes this a little easier for the public to get through the process without having to go through an Assessment application. Thank you. HENKEL: If there is no other discussion, there has been a motion to approve 9-10(i), the short form assessment form, the creation of that, by Commissioner Carr Smith and seconded by Commissioner Dela Cruz. So with no other discussion, we can do a vote. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? EXHIBIT A 73 KEALOHA: Aye. JACKSON: And Commissioner Unger? UNGER: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. DARROW: Okay, we are real close. This is the second to the last proposed rule change. The last one is super minor, so this one is the last difficult one. Rule 9-11 (b)(1)(1) under the Special Management Area Use Permit Procedures, and as mentioned previously, also there is a similar language under Rule 9-10(b)(9) under the Assessment section. This is regarding the waiver by the Planning Director of the submittal of the shoreline survey both for an SMA Major Use Permit application as well as an Assessment. And so what the Planning Department is proposing to the Commission is the following: "A current certified shoreline survey when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakable located on a shoreline parcel at a distance of at least one hundred feet from the shoreline." Commissioner Clarkson had brought up a suggestion earlier regarding the definition of shoreline, and so Maija had worked on a little bit of language that she can propose. JACKSON: If the Commission is interested, we could say, let's see, "A current certified shoreline survey when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakably located on a shoreline parcel at a distance of at least one hundred feet from a previous certified shoreline survey or from the shoreline as determined by the Director based on aerial imagery." Something like that. UNGER: Before we get into that discussion, I would just like to say that I don't like that arbitrary 100 -foot in there. I like the way it is worded now. I like having the Director having the discretion of making a determination based on "clearly and unmistakably located on a shoreline parcel at a considerable distance ...." I think we need to keep some of the flexibility into decision drawing. For that matter a 100 -foot is arbitrary. Why a 100 -foot? Jeff, you did explain that, but I just don't see the advantage here of, I do, I did hear the argument from the Planning Department that sometimes they get into stressful situations where that arbitrary decision was challenged. Well, I don't think this is going to alleviate that situation because you'll have just as much challenges on a 100 feet. I don't see, in fact, there may be developments more than a 100 feet that absolutely need the discretion of the Director to make a decision. So, I just don't see how we're benefiting the public or the applicant by coming up with a 100 feet. So I would propose as part of this discussion, is leaving this as it is now. EXHIBIT A 74 CHURCH: This is Commissioner Church. I agree with Vice Chairman Unger on that, and I think he's made a good point. HENKEL: And, this is Henkel. I agree also. There are areas in Kapoho and Puna that if you had an aerial photograph at low tide, it would show a whole different picture than an aerial photograph at high tide. And, I think each one is, you know, deserves its own evaluation. RAFFIPIY: Commissioner Raffipiy here. Question. Is there anywhere in the rules or anywhere in the statutes where it defines current certified shoreline? When you say current, I know we talked about like a year, but so it is mentioned somewhere that it's, current is one year. DARROW: Correct, Commissioner Raffipiy. This would be found in the HRS Chapter 205A, Section 3 which has to do with shoreline setbacks. If you can give me a second here, I can find it. RAFFIPIY: That'll DARROW: It says— RAFFIPIY: Go ahead. DARROW: Under 205A-42 Determination of the shoreline, it says, "(a) The board of land and natural resources shall adopt rules pursuant to chapter 91 prescribing procedures for determining a shoreline and appeals of shoreline determinations that are consistent with subsection (b); provided that no determination of a shoreline shall be valid for a period longer than twelve months, except where the shoreline is fixed by artificial structures that have been approved by appropriate government agencies and for which engineering drawings exist to locate the interface between the shoreline and the structure." So there's two options there. If there is no fixed structure that was previously permitted through a permitting process, then they can submit a shoreline certification. If it's approved, it's valid for one year. There is a date on the certification and that makes that certified. That's a certified shoreline survey. If, let's say, there was a wall structure that previously was approved and it received all its permits and the shoreline was approved at the base of the wall, as long as the fixed structure remains in place, it says that, that shoreline should be stable, or solid, for the time that the structure is in place. There has been, again, there's been challenges to that regarding activities with shorelines going over the wall, but that's the way the law reads at this time. RAFFIPIY: Thank you. Another question I have is, you know, back in September we had the briefing by the CZM folks and stuff, and I understand they established the first 20 feet and then we take it from there, setback. So where do we measure the 100 feet? From the 20 feet, after 20 feet or from the shoreline? I just want to make sure I understand. Thank you. DARROW: If I can try to address that. The shoreline setback that's established in rules is between 20 feet and 40 feet. Normally, the County of Hawaii shoreline setback is 40 feet. That would be from the certified shoreline survey, that certified shoreline that's established. So let's EXHIBIT A 75 say you want to build a house and you want, your property is, let's say, it's 80 feet wide, or long, and you want to build it in the middle of your property and we don't know where the shoreline is. Well, you may ask for a waiver, but we're going to be like, well, we don't, we really don't know where the shoreline is, I mean, the shoreline moves pretty, you know, extreme, it could be, you know, 30 feet away, it could be ten feet away, we just don't know. With the certification, we'd use the line to set the 40 -foot setback, and then you could build your house behind that. What we are proposing right now, and this is exactly what happens, people with smaller lots come to the Planning Department and they request a waiver for the survey when they are clearly not a considerable distance away, and our rules don't have a definition of considerable distance. It's just not there. I mean, for me I would think a considerable distance is, you know, I would think it would be more than a 100 feet, that's what I would think, but, again, we don't have a distance. We get a waiver request as much as 40 feet away, though, they ask for a waiver and it's a tough call to make. And we understand the reason why, and that's because of the process we described earlier of going through the certified shoreline survey and then find out that the shoreline moved and you've got this issue with encroachments, with loss of land. It's a difficult process. But, it places the counties in a real predicament as well because of this challenge that we have. So, all we are trying to do is make it a little clearer for the Department when we make these waiver calls. And, we feel a 100 feet, although arbitrary, is not as arbitrary as a considerable distance, which right now we have no, no means of knowing what that means. CLARKSON: Clarkson here. I have a, this is, the language we are talking about here is in the Use Permit procedures, which is the Major Permit procedures, correct? Am I correct in that case? DARROW: As well as the Assessment, which is under 9-10(b)(9). That was where I was saying that during our processing of this, that was overlooked, so we're asking to add that same language. CLARKSON: Here is my suggestion. I would leave it as it is in the Assessment section where you would just use "considerable distance." After all, we are assessing the probable environmental impact. And, but, once you start getting into a major development and, in a shoreline parcel, I personally feel that those kinds of project should have a current certified shoreline and I would prefer just deleting all the, everything after "except," that an application for a Major, a Use Permit, should always include a certified shoreline survey. UNGER: I kind of like that idea where you actually break it up, because, Jeff, I think our very next discussion was going to be this exact this same proposed change in Special Management Area Assessment. And I agree, you know, SMA permits, those are major, those are developments, a current certified shoreline survey certainly should be requested. Maybe at that time a 100 feet is more where we need to add. But under the SMA Assessment where you are really almost deciding if you are exempt or a Minor, to not be able to waive a current certified shoreline survey unless it's 100 -foot back, I think those are two different discussions with two different ending points. DARROW: Okay, challenging. All right. Let me speak to Commissioner Clarkson regarding his request. So basically, what I understand you are saying is that what you are proposing is that EXHIBIT A 76 for an SMA Major Use Permit, you would request a current certified shoreline survey when the parcel abuts the shoreline, period. Okay. So the question would be, and this is where the, I think this is where the discretion came from originally, is that we have quite a number of developments that are on large properties, they could be as much as a 100 acres or 200 acres or larger, and the development is clearly a distance away from, a considerable distance, I would consider that considerable, away from the shoreline. But, what we are going to be saying at this time is regardless of how far you are, you need to submit this. CLARKSON: Well, if it's a non-residential, major, more than 500,000 -dollar development, it just sounds to me, like no matter how large the parcel is, they should be able to confirm to everybody at the time they are proposing their project, where the shoreline is exactly, and that way you know exactly where the setback is. I mean I agree that if somebody has a 1,000 -acre parcel and they want to put a gas station up next to the highway, a mile away from the shore, it seems kind of silly to ask for a shoreline survey, but on the other hand I don't know how you distinguish those kinds of parcels from all the other kinds without allowing a great deal of discretion with the Director. DARROW: Okay, well, that was, that was one of the situations we ran into, is, and I think that's why, again, there was discretion in there, is because of these different situations that we run into. Regarding Assessments, this is where we run into a lot more requests for single-family dwellings along the coastline on smaller properties. And so, and we continually get request for waivers, and it puts us in a real predicament because they'll say, look, I'm 44 feet away from the shoreline, and we are like, but you don't know where the shoreline is, but I'm 44 feet, my boundary on my property says I'm 44 feet away, or I'm 56 feet away, I'm clearly out of the setback, and that should be a considerable distance. And, and again, by you leaving that language in the Assessment section, then the Director will still have the discretion to make that determination. We were trying to not have to be placed in that predicament because it's really a tough call; you are really close to the ocean, the shoreline is ever changing. And, we were trying to get a more distinct distance, but we're here to hear the Commission's concerns and directions. So, thank you. CHURCH: I'm still trying to figure out what's wrong with the existing language. I mean, a certified, a current certified shoreline survey is going to be required, if it abuts the shoreline, except "the Director may waive when the proposed development," which has been well defined, "is clearly and unmistakably located on a shoreline parcel at a considerable distance," and certainly that is a qualitative judgment that is made based upon the size of the parcel and other factors. And, I would think it would be appropriate within the purview of the Director the way it stands to be able to accommodate a wide variety of circumstances. So, I personally just don't, I don't see what's wrong with the existing language. UNGER: And to clarify it's not existing; we would be adding a "current certified" shoreline. CHURCH: Okay, with "current certified," yeah. UNGER: Yeah, I agree. EXHIBIT A 77 HENKEL: Does anyone have a motion? UNGER: This is Commissioner Unger. I'd like to make a motion, and it reads, "A current certified shoreline survey when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakably located on a shoreline parcel at a considerable distance from the shoreline." CHURCH: I'll second that. HENKEL: It's been moved and seconded. For my clarification, is this 9-11 (b)(1)(1) and 9-10(b)(9)? UNGER: No, no, this is just (I). HENKEL: The (I), okay. UNGER: This is just with the SMA application, Major application. HENKEL: Okay. All right, any discussion? RAFFIPIY: I just want to make a comment here. Looking and listening to all the, all the statements that have been made, kind of looking at this from the other perspective of, you know, different directors coming in at different times, and their interpretation of "considerable," I can almost see why varied interpretation, as we go in the future. I think establishing some kind of, you know, the 100 feet, at least there is some consistency through all the Planning Directors can, you know, they have a guideline to abide by. You know, "considerable" is "considerable." It's a big difference; your interpretation of "considerable" is, will be different from the next Planning Director. Thank you. HENKEL: Any other discussion? Then we can vote. JACKSON: All right. Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Kaholo? EXHIBIT A 78 KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: No. JACKSON: And Chair Henkel? HENKEL: Aye. JACKSON: Okay, the motion carries. HENKEL: Then this is our last one? DARROW: So we want to do the, this will be the language under the Assessment application, correct? And, so we've pretty much discussed it. UNGER: The discussion I'd like to initiate is possibly changing this from the SMA Major, keep in mind when the applicant is coming in and he is between a complete exemption or a Minor Permit. And so, and I think we've seen in testimony, getting a certified shoreline can be a major, major undertaking by a private landowner. And, we heard discussion about DLNR stating now that a certified shoreline, if it now encroaches into a property boundary, the Attorney General is now taking the position that they own that property, and that the owner of the property has to now get an easement from Department of Land and Natural Resources, and the property owner is still paying real property tax on this property, still believes he owns the property, and so why should he get an easement from Department of Land and Natural Resources on his own property. So I guess my point is, if we are requiring a certified shoreline survey, I think we all just need to recognize that that's a major undertaking in many cases that can stall a project out for literally years. That being said, we are talking about the difference between an SMA Major Permit and an SMA Assessment, and I think we do need to recognize the difference here and be real careful EXHIBIT A 79 about requiring a landowner to have to get a certified shoreline survey in this situation. So, you know, so the question for Commissioners is, you know, are we okay with the language as it is in the SMA Assessment? And I'll read it: "A shoreline survey," so leave it a shoreline survey, not a certified survey, "when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakably located on a shoreline parcel at a considerable distance from the shoreline." So for me, considering that this is not only, and I mean it's still an issue, but only an SMA Assessment, I'm probably okay with the language as it is. CHURCH: I second that. HENKEL: It's been moved and seconded. This is UNGER: I can rephrase that to a motion to help Noriko out here. HENKEL: Okay, Jeff UNGER: Chair, are you ready for a motion or do you want to HENKEL: No, hang on, Jeff s got a reply to you. DARROW: If I could just speak to this a little bit, because I think there is a little misunderstanding. The clarification in our rule regarding a current certified shoreline survey is only to clarify that that's what that is. The shoreline, there is no such thing as a shoreline survey; it needs to get a certified shoreline survey. So we were just clarifying the rule so it was correct. You can't go in and submit a shoreline survey that's not certified; that's not going to help us because it still isn't a, defined shoreline. Anybody can go and draw a line and it's not certified and determine what they want their shoreline to be. The second part of this is part of the responsibility of the Planning Commission is to comply with the objectives and policies of the Coastal Zone Management Area, which transfer down to the SMA guidelines. One of those is beach protection, which says, "Locate new structures inland from the shoreline setback to conserve open space, minimize interference with natural shoreline processes and minimize loss of improvements due to erosion." The only way that we can do that is when, by defining what the shoreline is and being able to create that shoreline setback. Without that, we don't know if a structure is actually being built within the shoreline setback area, which violates a whole other area, Special Management Area and shoreline setback rules. So there's, it's not just assessments in SMA we're looking at; now we are looking at a whole new permitting process where when somebody is going to build that close to the ocean, they have to come to the Planning Commission for a shoreline setback variance. And, so that's the clarification why these requests for these surveys are asked for on shoreline parcels so that we can make sure they are not developing within the 40 -foot shoreline setback area and not EXHIBIT A 80 UNGER: Okay, I understood and I appreciate the additional explanation, and I certainly understand, so I would, if I am, when we get ready to make a motion, I'll modify it to read "a certified shoreline survey." I understand that. HENKEL: Are we ready for a motion? Please go ahead, Mr. Unger. UNGER: This is Commissioner Unger. I would like to make a motion that we modify 9-9[sic](b)(9), "A certified shoreline survey when the parcel abuts the shoreline, except that the Director may waive the submission of the survey when the proposed development is clearly and unmistakable located on a shoreline parcel at a considerable distance from the shoreline." HENKEL: And that was 9-10(b), right? UNGER: That was 9-9, oh, I'm sorry, 9-10 HENKEL: (b)(9). UNGER: Nine CHURCH: Nine, yeah. UNGER: (b), there it is, (b)(9), so 9-10(b)(9). HENKEL: Very good, thank you. Is there a second? CHURCH: Commissioner Church, second. HENKEL: Commissioner Church, second. The motion by Vice Chair Unger. Discussion? Then we can vote. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. EXHIBIT A 81 JACKSON: Commissioner Kealoha? KEALOHA: Aye. HENKEL: I believe he said aye. His mic's weak. Can you confirm that in the other room? KEALOHA: Aye. JACKSON: Yeah. Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: And Chair Henkel. HENKEL: Aye. JACKSON: Okay, the motion carries. DARROW: We're almost there. I know I keep saying that. Well, since we are here, okay, on your Background, I didn't even bring it, this one is so minor I didn't even put it up on the screen, so, on your backon, gosh, where is this, I don't even think I put it in the Background it was so minor. On the rules that you have that has the yellow highlight of the areas we're dealing with, on Page 9-14, it is actually Rule 9-11(c)(4), 9-11(c)(4), all we're doing is cleaning up the lowercase "planning department" with the "Department," capitalized, and that's it That's the last one. CARR SMITH: Jeff, this is Commissioner Carr Smith. I just had a question. When do you folks decide to use the word "Department" versus "Director?" I don't really see the consistency and there must be something to that. Could you share that, please? DARROW: Well, let me see, I, in this case, I mean that's a good question, and unfortunately, I would say they are almost one and the same, and we kind of interject them both. But, I mean, if somebody is submitting something to the Planning Department, we could say "Planning Director" but they are actually submitting it to the Planning Department. If it's a direct decision EXHIBIT A 82 or action, sometimes we, I mean, hopefully, as we go through our major review rule change for 9, I will make sure we take a look at that and make sure we reference Director accordingly and Department accordingly, but I would think that it has to do with whatever reference is being directed at. If it's something being submitted to the Department or if it's an action being done by the Director, we would have a difference there. CARR SMITH: Thank you. DARROW: They are also defined under the General Rules. Thank you. HENKEL: So we need a motion, yeah? CLARKSON: I'll move to replace in whatever section, let's see, 9-11(c)(4), was that it? Replace "planning department" with capitalized "Department." HENKEL: Is there a second? IKEDA: Second. HENKEL: Discussion? UNGER: Yeah, again, this is minor but it needs to be discussed. I don't see "Department" in definitions, and so there's a lot of departments out there. Or do we need to put "Department" in definitions that state that "Department" is the Planning Department? DARROW: It's, Commissioner Unger, it's within Rule 1, of the Planning Commission Rules. That's where you'll find the definitions of "Director" and "Department." UNGER: Okay, good, as long as it's there. I just didn't see it. So that's fine. HALL: Yeah, Rule 1-3 UNGER: Okay, great. HALL: (i) and 0). HENKEL: Thank you. We are ready for a vote. JACKSON: Okay. Commissioner Clarkson? CLARKSON: Aye. JACKSON: Commissioner Ikeda? IKEDA: Aye. EXHIBIT A 83 JACKSON: Commissioner Dela Cruz? DELA CRUZ: Aye. JACKSON: Commissioner Raffipiy? RAFFIPIY: Aye. JACKSON: Commissioner Carr Smith? CARR SMITH: Aye. JACKSON: Commissioner Church? CHURCH: Aye. JACKSON: Commissioner Kaholo? KAHOLO: Aye. JACKSON: Commissioner Kealoha? KEALOHA: Aye. JACKSON: Commissioner Unger? UNGER: Aye. JACKSON: And Chair Henkel? HENKEL: Aye. JACKSON: Okay, the motion carries. HENKEL: ThatI guess that wraps it up. We don't need to approve minutes from the last time we had a joint meeting or anything, do we? Anything else on the agenda? No administrative matters? So, then, I would look for a motion to adjourn. CLARKSON: So moved. CHURCH: This is Commissioner Church. I just would like to say one thing and that is that I think that from my perspective anyway that Jeff and his team just did a phenomenal job over the last seven hours, trying to deal with all these objections and, so, congrats, Jeff, thanks for the job you did on this one. EXHIBIT A 84 HENKEL: I'd like to add, too, that the Commissioners, both you Leeward Commissioners and these Windward Planning Commissioners, I'm proud to be a part of it, and you guys all do a good job, too. UNGER: I had a question for the Planning Department. Jeff, maybe you could answer this. You have just mentioned in passing that you are, throughout the discussion today that the Planning Department is working on major revisions to Rule 9. So I get a little anxious when I hear that because this sounded pretty major. One thing that I was hoping that we would have time to discuss today, but it sounds like it's going to be part of this other process and that is, you know, a major decision by the Commission to have appeals heard by the Commission. I think the Planning Director mentioned it that he would be supportive of that in his Background Report, but there was no mention of it at this meeting. What, can you just give us a brief description of what this major process is and if that's going to be part of the major process? DARROW: The, since Act 153 was approved in 2011 and we had brought those changes to the Planning Commission in 2000 and, early 2012, when those changes didn't pass, we started working on an overhaul of Rule 9 just to be able to, there is a number of areas that we want to refine and define, and a majority of them have to do with enforcement procedures, appeals process, and just cleaning up the actual applications, all the, I mean, what we did here today was relatively minor comparably to what we are looking at, but as we go through the rules, this is why it's so difficult when we do these. When we change something, we realize a lot of times it changes something else and then we have to adjust that, and we'll find more areas that need adjustment and it just gets a larger amendment and a larger amendment. There were, the problem we've been having right now is, as mentioned earlier, when somebody violates a condition of the Planning Commission's SMA Use Permit, there really is no spelled -out process how that works. What we've done right now is we just said all we can do is bring it back to the Commission, but we want to be able to have a process in place that is already defined and spelled out where we would go to the Commission and ask the Commission, look, we have this complaint, we want to be able to issue a violation but we don't have the authority; the Planning Director right now doesn't have the authority to issue a violation for a Major Use Permit because that's not in the rules. So, without that I'm sorry? Oh, without that in the rules, what we were thinking of doing is instead of doing that, because of the fact if the Director issues a violation, what happens, it goes, the appeal goes to BOA, so we've got to figure out these processes so that it would come to the Commission. We are thinking of something similar to the Land Use Commission like an order to show cause where you issue an order to the applicant to come back to the Commission to answer to complaints that have been received, and then the Commission would issue whatever violation or fines or collective action that would be appropriate. The Planning Commission would do the same thing in the sense of providing you with background, possible recommendation, of those particular issues and possible fines and corrective action. Again, also in the appeals process, we are trying to figure out how to bring any appeal of any SMA decision to, back to the Planning Commission. We have a problem with that right now because it's conflicting with our Charter; the Charter says all Planning Director related decisions are appealed to Board of Appeals. So, we need to figure out legally how we go about that. It's not very easy to do a Charter amendment; it has to go before the public, and sometimes they don't EXHIBIT A 85 HALL: May I suggest making it not a final decision. Because it says final decision, right? In the Charter? DARROW: Okay HALL: I don't know, I just, DARROW: —Okay, maybe we can work on it. HALL: interim decision of the Director to be appealed to the Commission DARROW: Good suggestion, Malia. So LINGER: What is your time frame of coming forward to the Planning Commissions with the final set of proposals for this, for these actions? DARROW: I really—we've been asked that question by a number of things that we've been asked to do by a number of different agencies, so I really don't want to give you a concrete answer, but we are working on it. Each one of us that are in the Planning Division has been assigned a special project, and I think Miss Maija has been granted the Rule 9 special project. Is that correct? JACKSON: That's correct. DARROW: Oh, okay, so, but we work together as a team. We have a number of things coming your way that we are aware of that we can't share with you right now. Those are going to also take a lot of our time, and they're going to be quite controversial. And so those, those should be interesting, too. But we are actively working on it. We know what needs to be changed. We just need to figure out how we are going to do it and legally. But. LINGER: Great. Thanks. JACKSON: I'd like to just add to that. So, originally we had hoped to get a comprehensive Rule 9 update to you by the end of this year, and that's probably going to be pushed at least to spring of next year. One of the ideas we had after the previous round of rule amendments was to form a sub -committee of the Joint Commission to have some Commissioners from both the Leeward and Windward Commissions work directly with Planning Department staff to come up with this comprehensive rule amendment, and one of the questions that staff had for Corp. Counsel was whether you would all need to form that sub -committee and agree to task that out at a joint meeting or if that's something that the two Commissions meeting separately could do. So perhaps Malia can let us know whether that's something that you guys would have to act on today to form a sub -committee for future rule changes or if that's something we can wait and decide later. HENKEL: I nominate Myles Miyasato. Thanks, Myles. EXHIBIT A 86 HALL: Did we get the [inaudible] . Oh—are you still there? LINGER: Yes, we're here. HALL: I think that you can, you guys can make those motions that, you could do it today. That is very true. Or you could wait, go back to your respective committees and get that done. For Windward it's this Thursday LINGER: I'm okay with waiting, Chair. I'll defer to you. HENKEL: There's a motion to and a second to adjourn. All in favor? COMMISSIONERS: Aye. HENKEL: Opposed? Thank you, all. The discussion ended at 4:00 p.m. Respectfully submitted, Sarah Y. Hata-Finley, Secretary Windward Planning Commission Respectfully submitted, Noriko Sauer, Secretary Leeward Planning Commission EXHIBIT A 87