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HomeMy WebLinkAboutCHC 1979-06-12 HAWAII COUNTY CHARTER COMMISSION MINUTES 22nd Session June 12, 1979 Hilo, Hawaii The twenty-second session of the Hawaii County Charter Commission was called to order at 4:41 p.m. in the Hawaii County Councilroom, Hawaii County Building, Hilo, Hawaii by Mr. Kimiaki Sakata, Chairman. The roll recorded the following: Present: Mr. Richard Ishida (came in later) Mrs. Amy Iwamoto Mrs. Gloria Kobayashi Mr. Akira Omonaka Mr. Kimiaki Sakata Mr. Spencer Kalani Schutte Mr. Herman Sensano Mr. Joseph Trulson Mr. Basilio Yagong Mr. Matsuo Yanaga Absent Mr. Harlan Cadinha and Excused: Also Mr. R. B. Legaspi , County Clerk Present : Mr. Horace Kawamura, Chairman, County Pension Board Mr. Sidney Fuke, Director, Planning Dept. Mr. Clarence Garcia, Director, Department of Research and Development Mr. Stuart Oda, Attorney (came in later) Mrs. Joan Carnett, Secretary CHAIRMAN SAKATA: Would somebody move to amend the Rules of Procedure so that we can go into the testimony from the Research and Development Department and also from the Planning Department. MR. OMONAKA: I so move. MR. TRULSON: I second. CHAIRMAN SAKATA: It has been so moved and seconded that we amend the Rules of Procedure and go into our testimonies. All those in favor? Carried. I/ Before we go into the Research and Development and the Planning Department, I think I would like to call on the pension board people here to give us a little synopsis on their department. Last week, somebody did mention that they would like to have somebody come before the commission and give us some idea about the county pension board, so I did call on Mr. Legaspi , the County Clerk , and he has appeared before us today. Mr. Legaspi. MR. LEGASPI : Thank you, Mr. Chairman. By virtue of the Hawaii Revised Statutes, Section 88-181 , the county pension board exists. We do have our chairman for the county pension board, Mr. Horace Kawamura, who can expand on any of the sections that you so desire. Basically, we are trying to cover employees who were in the system prior to 12/51 and their heirs, I guess, if they qualified for a county pension. These would exclude those who are presently members of the Hawaii Retirement System, of course, and; again, the legal mandate is in HRS 88-181 and the County Charter, Section 5-3.4. Also circulated is the synopsis of the function of the pension board. I think each member should have a copy in front of you. Whether the concern was whether the pension board should be part of the charter, I think it is mandated by state law so that should be kind of conclusive. MRS. KOBAYASHI : Who funds the pension board? MR. LEGASPI : It is funded by the general fund of the county. MRS. KOBAYASHI : And the amount of the pension is set according to. . .is similar to the way the State ' s Retirement Systems are funded? MR. LEGASPI : As far as the award, I 'm not familiar with the amount of the award but it is based on the years of service. To qualify for the county pension, he will have to have served for at least 10 years to qualify. . .working for the county. Horace, do you recall the percentage of the award? The amount we give to pensioners? The amount of the award, is it based on a percentage? MR. KAWAMURA: . . . .plus the cost of living bonus . . . .comes up to about $150 dollars. CHAIRMAN SAKATA: Is that standard for all? Or is that. . .the pension is based upon. . .you have to serve ten years before you can get pension from the county? MR. LEGASPI : Right. Maybe Horace had better come up so he can be recorded. Yes, ten years. MR. KAWAMURA: May I introduce myself. I am Horace Kawamura, Chairman of the Hawaii County Pension Board of 5 members. Appointed by the mayor, confirmed by the council. They all serve a term of 5 years. The staggered terms are finished. . .so 5 years. -2- We are mandated by law 88-1. It is the law that covers the pensions and the retirement systems and all our rules and regulations and application forms, etc. , are based upon 88-1. There are about 200 or 300 subsections. We try to service the old time county per diem workers, a long time ago, who were not in the retirement system. And I think this law was made a long, long time ago, 1920' s or 1930 ' s to take care of these people who were not eligible to get into the retirement system. They stipulated 120 months of service and we go according to the records in the county files. The County Charter has only one paragraph. The County Charter says this, there will be one pension board in the statutes. Two pension boards for each county. In other words, the county pensioners and the policemen, firemen, bandsmen. But this county, the Charter Commission in the past, in their wisdom, combined that. It is more efficient. Any questions? I ' ll try to answer. MR. SENSANO: Mr. Kawamura. As the years go by, the number of people covered under this plan will decrease . . .or are there people who are actively employed who will be retired under this system? MR. KAWAMURA: Actually, after 1950' s everybody regardless of salaried people, or per diem, are required _to be in the retirement system and if you are in the retirement system you are not entitled to county pension. You see, a long time ago, since the 1920 ' , 1930 ' s, I think, our Legislature, this is politics, I think, these people had no retirement, no pension to look forward to the Legislature created pension boards for each county to take care of these people. These people don' t contribute anything, it is all gravy. MR. SENSANO: What I am trying to get at is, in time, the number of people covered by this plan are decreasing you are not adding any more. MR. KAWAMURA: No, unless somebody comes out from the bushes and says I didn ' t know, I have 120 months of service in and then they sign an application and we scrutinize the records. If they qualify, okay, but. . . MR. SENSANO: But the chances are very small. MR. KAWAMURA: Yes, it' s coming down and down and down. What we are servicing are the widows, the survivors. They are entitled, by law, to carry on what the pensioners used to get. But it is diminishing and diminishing fast. Pretty soon no more. CHAIRMAN SAKATA: Any other questions? Pertaining to the pension hoard? MR. KAWAMURA: Thank you. CHAIRMAN SAKATA: Thank you very much, Mr. Kawamura. -3- We' ll have the Planning Department. MR. FUKE: Mr. Chairman, do you want me to just answer questions or to give some of my impressions as far as what the proposed merger is?_2 CHAIRMAN SAKATA: I think we' ll hear from you first and then maybe the commissioners will ask questions , later on. MR. FUKE: Thank you, Mr. Chairman, again for giving me this--actually, this third opportunity to speak before the commission. I tried to scribble down some notes as far as what my thoughts were with respect to the proposed merger of the R & D and the Planning Department, so after I do read it I ' ll have it retyped and give it to your secretary and also make it available to the various Charter Commission members. Generally, the organizational theory behind the proposed merger of the Planning and the Research and Development Department is this. . .similar, or like things should all be housed under one roof. In so doing, greater efficiency would • be achieved and important tax dollars could be saved. As expressed at your earlier meeting, I do not support the proposed merger. Let me explain by first giving you my understanding of the functions of the Planning Department. One of the principle functions of the Planning Department, I believe, is to coordinate all land use activities, private and public. In so doing, the department is involved in considera- tions ranging from water, drainage, sewer, roads, historic sites, parks and, yes, economic implications. And after assessing all of those considerations, we then arrive at a decision or a recommendation. The Planning Department is thus viewed as trying to balance all considerations. The physical with the social with the economic environment. And to accomplish that, we must interact with the other agencies and the public. This is why I earlier commented to this commission that I .:thought that the Planning Department functioned, to some extent, like the central nervous system of a body. To generate and maintain public credibility is a full time and tough assignment of any agency, particularly one with planning functions. We have constantly strived to create a spirit of openness, combined with fairness, in arriving at a decision which reflects many, many concerns. Much to my disappointment, but understandably, we have seen in the past and even now, how the Planning Department has been wrongfully branded as being pro-development, or anti-development, or pro-environment, or anti-environment. Such labels are almost inevitable. Especially for an agency like ours that gets involved in making decisions where the applicant does not always have his own way. One of the major tasks of this office does is to convey, or provide, land use directions with an atmosphere of objectivity and neutrality. To get immersed or charged with one function , such as economic development or environmental protection , the Planning Department stands to lose the much needed quality of being objective. -4- For example, if the Planning Department were to assume the economic development functions and blindly promoted tourism development, and then later on , process and approve the. plans for the resort development, it then becomes really debatable whether that agency would have much, if any, public credibility for being objective and reflective of the balanced need of the people. It will be similar or analagous to the Planning Department assuming the functions of the Federal Environmental Protection Agency or the State Office of Environmental Quality, Control and later processing and approving plans for development where some negative impact to the environment will occur. The Research and Development Department, as I see it, is a single purpose department just like the Public Works, Water, or Parks Department are. Where the Water Department' s principle focus is water, the principle focus of the Research and Development Department is economic development,. whether it fall in agriculture, energy, tourism, manganese nodules, aquaculture, and so forth. As such, the basic question that really must be assessed, is whether, in,Jact, there is a need for an agency that actively solicits and develops economic development programs and activities. The neighbor island counties have, for quite some time, acknowledged such a need and, I believe, that this need still exists for the County of Hawaii. Maui and Kauai Counties both have comparable agencies except that they work directly out of the mayor' s office. None of the various County Planning Departments, Maui, Kauai, Honolulu or the Big Island have this economic development function. I do recognize that the State has a Department of Planning and Economic Development and its major objective is economic development. According to the State S,tatutes ,, Chapter 201-2. . .this is a direct quote out of the State Statutes. It provides as follows: "It shall be the objective of the State Department of Planning and Economic Development to make broad policy determinations with respect to economic development in the state and to stimulate through research and demonstration projects those industrial and economic development efforts which offer the most immediate promise of expanding the economy of the state. " So, DPEbis, as you will note, has a primary emphasis on economic development. I would like to add, however, that the type of planning that is done at the state level is quite broad and, equally important, the DPED does not have any regulatory functions at all. Thus, the potential for conflict to occur at that level even if they were to do planning and economic development activity, is quite minimal, but, at the county level where the planning agencies have regulatory functions and where the various economic development activities are short ranged, the potential for conflicts to occur are quite real. Therefore, I belive that the Planning Department has distinct functions from the Research and Development Department. Where the Planning Department is more of an umbrella-like agency with regulatory functions, the R & D is more single purposed. It's single purpose, of course, is economic development and it would be no different than the Water or Parks Department. Where the Water -5- Department would handle water, the Research and Development would handle economic development. But all of those considera- tions , water, parks , roads, economic development and so forth, would then have to be packaged and balanced and that is the function of the Planning Department through its regulatory controls of zoning, subdivision and whatever regulatory requirements that are currently assigned to our office. Very briefly, Mr. Chairman, that is generally how I believe the planning and research development have been, and should be organized. CHAIRMAN SAKATA: Do any of the commissioners have any questions to ask Mr. Fuke? MRS. KOBAYASHI : Mr. Chairman. We also have something from legal counsel regarding the setting up of some changes to the section on the Planning Department. Would questions be..it' s not the subject but I just wondered if the Planning Department was aware of the changes that legal counsel is suggesting. MR. FUKE: Just generally. Through the newspapers , the West Hawaii Today and the Tribune Herald, I have been made apprised of what the proposed changes are. I would like to just generally add that in relation to giving the county council the authority to initiate general plan amendments, I think that it is made rather clear in the legal memorandum prepared by the corporation counsel ' s office in relation to the general plan amendments that the council , by virtue of the existing language of the charter, does already have the authority to initiate general plan amendments. What they did back in 1971 was they passed an ordinance which was a general plan which delegated the responsibilities of initiating general plan amendments from the council to the planning director. So I do not necessarily believe and, again, based upon the strength of the corporation counsel ' s opinion whether, in fact, specific language to that effect would be needed in the charter. With respects to whether the Planning Commission should be in a position to initiate general plan amendments, generally--if I can back up, I have developed procedures for council ' s consideration right now which would allow the county council to initiate amendments to the general plan. This has already met the corporation counsel ' s office test as far as whether the proposed bill meets the require- ment of the existing language of the charter and their office at this point in time concludes that it does. With respects to the Planning Commission initiated amendments at this point in time I would have some reservations unless other changes are made. I think that what we must really understand was when the charter was first prepared and developed I read into the charter where the Planning Commission on major policy issues , planning policy issues would basically be assigned the responsibility of testing. You know, testing whether the Planning Director' s proposal is acceptable from a lay body which is the Planning Commission and then it would go over to the county council on major planning policy issues. On things dealing with day to day kinds of operations, the Planning Commission would also be charged with the responsibility of granting variances or denying variances, use permits, or whatever have you. These would be the day to day operations as distinguised from general plan amendments which are long term and have broad policy implications. -6- If you have a system where the Planning Commission would be in a position to actually initiate or stop general plan amendments, I think that we may be moving in an area where the Planning Commission should become an executive commission. An executive commission would be something comparable to the Water Commission, Liquor Commission, the Police, and so forth. Where the respective directors would be appointed by the commission. In the current setup, under the existing charter, the Planning Director is appointed by the mayor and with the commission then would serve more or less as a sounding board. In researching the whole general plan amendment process, I checked with the three other jurisdictions, the Kauai County, the Maui County, and the City and County of Honolulu. Kauai County is the only county where you have an executive commission where the director is appointed by a planning commission. Maui and the City and County of Honolulu, they were both appointed. by the mayor. In terms of general plan amendments, then , you will find that only in.__ Kauai County would the Planning Commission be in the position to initiate or stop general plan review. In the Counties of Maui and the City and County of Honolulu, similarly like the County of Hawaii , you would have the Planning Director being the initiator and, again, the commission serving more as a sounding board, or as a testing for the Planning Director' s proposals. My general impression, just for overall is that I think that, basically, the existing setup which discusses the general relationship between the commission, the director and the board of appeals, is an acceptable one. I prefer that kind of system as opposed to an executive sort of planning commission. I think if you go back again and just think about the overall need for county wide coordination to the extent that you have many, many executive typesof commissions where none of the directors would become responsive or responsible, directly, to either the council or the mayor then you could, in a sene, have each commission, so- called, pulling at each other. In terms of the other--from what I can understand, the Planning Commission being in a position to delegate some of the variance, or administrative, responsibilities to the Planning Director, I have perfectly no objections to that. I discussed that provision earlier. And also with respects to having the Planning Commission serve like an intermediary appellate body where the authority is granted to the Planning Director to deny or approve variances, if the guy wants to appeal , he can go before the Planning Commission, that, too, I would have no objections. But I think that what really has to be made clear then under that circumstance whether what would then become the function of the Planning Board of Appeals, as it right now reads the Planning Board of Appeals hears action of both the Planning Director_ and the Planning . Commission. So, if you are going to change the function of the Planning Commission wherein they would be in the position to hear appeals by decisions made by the Planning Director then you would also have to change what would then become the function of the Planning Board of Appeals. -7- So, Mr. Chairman, what I intend to do is make a copy of the Corporation Counsel ' s memorandum with respects to the general plan amendment available to your secretary, as well as my earlier statement. CHAIRMAN SAKATA: Are there any other questions for Mr. Fuke? (No questions) Thank you, Mr. Fuke. Now we will go to the Department of Research and Development. MR. GARCIA: Mr. Chairman , members of the commission. Theine'rger that is proposed between the Department of Research and Development with the Planning Department, I think is not a sound one as far as I am personally concerned. The functions of the Department of Research and Development, as we have been performngin the last four and a half years, has been one mainly of economic development and promoting the Big Island as a place to do -business and a place to visit, that type of thing, and, therefore, those would not be compatible with those of the Planning Department. Without going over what Sidney has said previously, I would add some of my other experiences with some of the other jurisdictions on the mainland. It has been my experiences that there are many counties within the various states on the mainland that have a very active department promoting the particular county for whatever economic development, as a visitor destination area, that type of thing. And I see that this type of function that can be performed by the Department of Research and Development. I think this is function that we cannot depend on, for example, the State Department of Economic Development to perform for this county, here. This is a function , I think, that we should actively promote and actively pursue on our own. Because of the regulatory functions of the Planning Department, there might create some problems, as Sidney has mentioned. Some -credi,2bil ;ty,:: problems with any decisions that might be made regarding any activity that the Planning Department might undertake. And, therefore, I firmly believe in all sincerity that the two departments should not be merged if we expect to continue the economic growth and economic development that this county has the potential for. . I ' ll try to answer any questions that you may have concerning the Department of Research and Development. CHAIRMAN SAKATA: Any questions? MRS. KOBAYASHI : Wasn ' t Stuart also supposed to check into the validity of the collective bargaining? He' s not here so. . .I don ' t know if that is something you could answer. CHAIRMAN SAKATA: We were talking about this, last time. If there is going to be a merger and you cannot cut personnel, in other words, because if you are going to merge -8- and you are going to say, okay, the number of personnel is going to be cut because of the merger, then you are going to get into a situation. . . MRS. KOBAYASHI : But, based on what your presentation to us last time was, you don ' t have very many personnel that are regular civil service employees, do you? MR. GARCIA: The department has seven, including the director and deputy. Seven full time employees. MRS. KOBAYASHI : But the director and the deputy are not covered by civil service. MR. GARCIA: Right, we are appointees. MRS. KOBAYASHI : So, actually, you have five collective bargaining unit employees. So, what we are really talking about is five employees. MR. GARCIA: I think it goes a little more than just employees, as such. It is just the function that we want the department to serve. I think it is a little bigger than just that type of consideration. MRS. KOBAYASHI : . . .the arguments that have been given us, seem to be consolidation is more economical use of county money. This is why I wanted. . . MR. GARCIA: Yes, and I would raise the question to counter that with just what do we expect of the county, where do we want to go. I think if we are talking about economic development, this should be a primary focus within the county and it should not become a part of anything else within the county, as far as I am concerned. I think we have great potential for this county. We have great potential for growth. We shouldnot undermine that particular potential that we have. CHAIRMAN SAKATA: Any other questions? Mr. Schutte. MR. SCHUTTE: Mr. Garcia, then what you are saying is that you definitely feel that these two departments are not compatible. . .and they should remain as two separate departments. You cannot see any economics in putting them together. . .outside of MR. GARCIA. I really don ' t understand what is going to be saved by the consolidation. If anything, I think, in the long run, it is going to be hurting the so-called promotional efforts as far as the county is concerned. And, again, I would like to emphasize this is the function promoting the Big Island. I don ' t think we can depend on someone else to do this for us. Whether it be the state or someone else. This is a function, I think, we should be responsible for ourselves. -9- CHAIRMAN SAKATA: Any other questions? MR. GARCIA: One more thing. Probably, maybe, some of the confusion might arise with the terminology "Research and Development. " As I mentioned in my first visit with you, we serve several functions. One big function that we serve is the area of economic development and promotional effort of the big "Big" of this island, this county. The research part is where we do some of the information gathering and information generating in supporting some of the activities of the county. These are two functions that we serve within the department. CHAIRMAN SAKATA: Anyone else? MR. OMONAKA: Mr. Chairman. Mr. Garcia. If there should be a merger of these two departments , could you have one division in the Planning Department as a research arm and have one administrative head and you can continue to function as you are now in this department? Can it function? MR. GARCIA: Well , like I say, when we are talking about promoting and I use this term in a real broad sense, "promoting". . .I think it has to be free and clear of any regulatory involvement. I think if there is a tie in say, R & D functions with the Planning Department, I think there might be some credibility that might be arising with some of this promotion effort. I think this would be a real credibility problem that might arise. One of things that we did early-on was try to get information on the economic development programs, for example, that is going on in the various states. In many of these states and in many of these counties , it ' s a separate function that ' s a separate department or agency within that county or state promoting that particular jurisdiction. So, I still believe, firmly, that it should be two separate departments. MR. OMONAKA: You still didn ' t answer the question. Can you function even though you are mergedIf you separate the, you know, bring :;in' over the R & D group into the Planning Department and let that group continue to MR. GARCIA: This is what I am saying. I think we would lose a lot of credibility if we did that, for one thing. I think if. . .and this is my observation, it may not be correct but, I think, if there is a merger that would take place between R & D and the Planning Department, some of the functions that we are currently doing in the Department of Research and Development would drop down at a low level as compared to some of the planning functions that are ongoing within the Planning Department. So I think it would play a lesser role within the Planning Department as far as same of the other ongoing functions within the department. MR. OMONAKA: That can happen MR. GARCIA: Yes, I think this would be a very real happen. MR. OMONAKA: But it can work in merger. You still haven ' t answered that. Yes or no? -10- MR. GARCIA: I 'm telling you, not it won ' t work. CHAIRMAN SAKATA: Are there any other questions for Mr. Garcia? (No questions) Thank you, Mr. Garcia. Before Mr. Fuke goes, we would like to call on him for a few more questions. MR. FUKE: Thank you, Mr. Chairman. Obviously, I am rather concerned because it not only affects the Research and Development Department but it also affects the Planning Department. I thinkthe basic question we all must ask, as I tried to point out earlier, is that, is there a need for an agency, or a body, or whomever, whether it is a separate department or part of the office of the mayor, or offce_of council services, or whomever, wherein the principle responsibility would be to actually bird dog new economic development programs and projects for the County of Hawaii, that' s the critical question. And if you can say, yes there is a need for such a body, such a agency, such a department, as I indicated earlier, by putting it in the Planning Department. . .well , people may accuse me of becoming an empire builder, but, by putting it in the Planning Department, I think it would be non-functional. . .because the Planning Department ' s responsibility is to look at the environ- mental , the economic, the social, the whole bunch of other kinds of concerns. If we have the economic development activity in our backpocket and when we go out into the community and we tell them, look, this is a program that we have supported and we've accomodated all of the economic and the social and the historic site implications, I don ' t think we can generate credibility. They are going to say, how can you do that. How can you say that, when, in fact, you are the ones who developed the project, kind of thing. What is really critical from our standpoint, long term planning standpoint, is you have to convince the public that you have a department that is very objective because it takes a look and it doesn ' t go in bed, so to speak, with any one component. . .economic development, drainage, or what have you. This is why I think it is very important for the long term development interests for the Big Island, we have got to have a Planning Department that is distinct and separate from economic development, from water development, or whatever. MR. SCHUTTE: . . . .with regards to credibility, everything is separate now but you still have a hard time with the public to retain credibility so. . . I wanted to ask you, in regards to the Board of Appeals, could this be consolidated with the Planning Commission. . .the powers of the Board of Appeals. . .it seems like the Planning Commission has a certain job to do and passes the buck over to the Board of Appeals and if you have another appeal to the Board of Appeals and go right on down the line. Is it impossible for the Planning Commission to assume that the responsibilities of the Board of Appeals. . . . -11 MR. FUKE: If like what was suggested earlier that the Planning Director be delegated some responsibility in terms of granting variances and when a guy is displeased with my decision he runs to the Planning Commission, then under that setup, Commissioner Schutte, I wouldn ' t think there would be a need for the Planning Board of Appeals. Because in a sense you would be having the Planning Commission providing this kind of so-called review function. MR. SCHUTTE: You know the reason I asked that --I don ' t mean to cut you short, but on page 12, item (d) says it gives the Planning Commission the authority to adopt rules and regulations having the force and effect of law pursuant to the subdivision and zoning ordinances. So I would assume with that in mind, they would have some authority to move on anything that would come up before the Board of Appeals. MR. FUKE: In my understanding of the scope of review for the Board of Appeals , given the current language, is that the board would principally look at procedural matters, whether, in fact, when the commission or the director had made a decision, all of the procedural bases have been touched. And the other concern would be whether in fact the Planning Commission or the Planning Director had acted arbitrarily or capriciously, you know, rather whimsically. And only under those two circumstances, would the Board of Appeals be in the position to overturn the original decision. But if you are dealing with situations where there is a lot of value judgment, where, for example, if the code would say for maybe the parking stall requirement for an apartment would be 20 stalls for a 20 unit apartment and the Planning Director then would impose 30 and if a guy wants to have relief from that requirement under the current setupbecause that is a discretionary imposition, they would have to go directly to the Planning Board of Appeals. But what the Board of Appeals would look at would be, as I mentioned earlier, those two considerations. One is the procedural and the second one whether_the-director had acted arbitrarily or capriciously. But on the other hand you may want to have a body which would look at the real I guess the guts of the issue and say, hey, planning director, maybe it shouldn ' t be 25 , maybe it should be 20, or maybe it should be 21 , or 22, because of an x, y, and z kind of circumstance. They would be actually looking at the case as if they themselves were the Planning Director. Right now, I don ' t think the language of the charter allows the Board of Appeals to look into the substance of a matter that has been disposed of by the Planning Director or the Planning Commission. And I think what at that point in time, Commissioner Ishida was trying to convey when he made the suggestion, was just maybe there ought to be a body--not the Board of Appeals , well call it the Board of Appeals, or the Planning Commission, a body that would take a look at the substance of decisions made by the Planning Director. And I 'm saying if that is the case and if the commission is going to assume that function on decisions made by the Planning Director then maybe it may be somewhat duplicative to have another Board of Appeals. -12- MR. SCHUTTE: That was my only question, could we consolidate, It Do you see any problem other than that. . . MR. FUKE: If there are any problems behind giving the commission the authority to review? I guess the only question that. I would have is that when and if the commission makes a decision on a variance that is not act =:ivated by the Planning Director, and if the guy is upset and wants to appeal, who would he appeal it to? Would he appeal to the Board of Appeals, Planning Board of Appeals,or would that person take it directly to the court. What has been suggested earlier is, I guess, that the decisions that the Planning Director made would be appealed to the Planning Commission and not to the Planning Board of Appeals. Yet, the question I am raising is that when the Planning Commission makes a decision, you know, who would the appellant for the grieved person appeal to?:-Would it be directly to the courts or the Planning Board of Appeals. MR. SCHUTTE: Tell me something, in your past experience, with regards to the Board of Appeals, how many people that have appealed a decision, how has the board ruled? MR. FUKE: Just recently, the Planning Board of Appeals remanded or returned a variance application which was denied by the Planning Commission and the guy appealed to the Planning Board of Appeals. The Planning Board of Appeals heard it and they found some discrepancies and returned the entire application back to the Planning Commission for further consideration. MR. SCHUTTE: Within the last two years how many? MR. FUKE: Within the last two years, I 'd say, maybe about half a dozen. No, no, I'm sorry, within the last two years there were probably about six applications which were heard by the Planning Board of Appeals of which roughly like about three and three, yes. 50% were in behalf of either the commission or the Planning Director and the other 50% in behalf of the appellant. So, going back to what I made as an earlier comment, I think it was about two months ago. . .I think that there is a definite need for a Planning Board of Appeals, to serve as a safety valve. Maybe having a limited authority to review variances which are delegated by the Planning Commission for the director to consider. But maybe as an alternative, what may -be conceivable is to expand the scope of the Planning Board of Appeals so that the Planning Board of Appeals would not only look at procedural matters or arbitrary, capricious kind of issues, but maybe they may get involved in some of the substantive issues. -13- MR. SCHUTTE: One last question. What is this particular rule:d,ealing on. . .having the force and effect of law. . . . MR. FUKE: My understanding is that the commission has rules and regulations for consideration of variances from the subdivision code, or from the zoning code. These are their rules and regulations and as I would read it all it is indicating is that if these are riles and regulations that are developed and accepted by the commission and ratified by the council , then they would have the force and effect of law. But, generally, these rules and regulations relate more to how items that are considered before the commission are to be handled. MR. SCHUTTE: Is this your interpretation of it or is it the legal interpretation of it. MR. FUKE: My interpretation. MR. TRULSON: -Mr. Chairman. Mr. Fuke, one question, regarding subsection 5-4. 2. I was just looking over some of your past.o .over the past minutes when you were here. I 'm not quite clear, quite sure how you feel regarding appoint- ment by the mayor, confirmation by the council. MR. FUKE: I think that at that point in time, Commissioner, I had indicated that because there was a need-for and if you have an executive branch and you create a strong '1 executive branch then I couldn ' t necessarily understand the need for confirmation. But, I also went further to indicate that if theyare, the commissioners find a need for confirma- tion, I could not necessarily see why maybe the Planning Director or only the Corporation Counsel ' s office should be singled out. If you are looking at the situation with the. . . for example, like the State Cabinet officers, all of the cabinet officers are confirmed by the State Senate and not certain positions. MR. TRULSON: What would you recommend, right today, the way it is now? MR. FUKE: At this point in time, no confirmation. MR. TRULSON : By the council. MR. FUKE: Right. MR. TRULSON: Thank you. CHAIRMAN SAKATA: Any other questions? Thank you, Mr. Fuke. RECESS: The Chair called for a short recess at 5 : 30 p.m. RECONVENE: The meeting was reconvened at 5 : 45 p.m. -14- APPROVAL , The Chair called for approval of minutes OF MINUTES: dated May 29, 1979. The following correction was noted : Page 20, roll call vote on motion to approve Section 4-5 should show one dissenting vote: Ayes--Ishida, Iwamoto, Noes--Trulson - 1 Kobayashi, Omonaka, Absent--Cadinha, Sakata, Sensano, Schutte Yagong, Yanaga - 8 Motion was made by Mrs. Kobayashi to approve minutes as corrected. Seconded by Mr. Trulson and unani- mously carried. COMMUNI- The following Communications were considered: CATIONS: Comm. 65 : Letter from William W. Moss , dated May 29, 1979, submitting suggested revision of Article IV, County Charter. Comm. 66: Letter from H. P. L'Orange, Hawaii Leeward Planning Conference, dated May 29, 1979, sub- mitting proposed revisions to charter. Motion was made by Mr. Trulson to receive and file Communications 65 and 66. Seconded by Mr. Yagong and unanimously carried. BUSINESS CHAIRMAN SAKATA: We will go to the business of OF THE DAY: the day which will be to continue drafting the revisions to the charter. MR. ODA: Mr. Chairman. Practically everybody is here, now. I neglected to introduce my Research Assistant Frances Higa from Mountain View. She' s a law student at Manoa and is working for the summer to help me with the vast task of researching many of the charter provisions. CHAIRMAN SAKATA: We saw her last week and this week we are pleased to welcome you. Thank you, Mr. Oda. Before we start,, do you have anything to inform the Commissioners of, Mr. Oda?"'- MR. ODA: When _I passed out the suggestions and the requests made of me, basically; Mr. Chairman, I drafted a definition of vacancy; the definition of impeachment--not a definition but a procedure of impeachment; there is also attached the Hawaii Revised Statutes provisions on impeachment for comparison purposes ; also attached is the recall and -15- impeachment provisions of the Honolulu City and County Charter for your information ; also attached is the reapportionment commission proposal which I was asked to put together for discussion, and also attached are_ some draft proposals regarding the Planning Department and the Planning Commission as well as the Board of Appeals. Anything that I have put in brackets are suggested deletions, and anything underlined are new additions. What I did, Mr. Chairman, is with regard to the Board of Appeals, I put it under the Miscellaneous Chapter 6, for purposes of consolidating. It can go on page 14 after the Safety Coordinator provision. I added, as part of the Board of Appeals, a board that very few people know about its function in this county, and that is there is another Board of Appeals for the Public Works Department that was created by ordinance. People don ' t know about it because nothing wa.s-written about it-except there is an ordinance somewhere floating around that was created. They hear appeals from the actions of the Public Works Director regarding plumbing, electrical and building code violations. So, what I did is rather than have that board meet once or twice a year, I combined the appeals under one Board of Appeals for both Planning Department and Public Works Department and giving that Board of Appeals the consolidated function. MR. TRULSON : And you also enlarged the board from five to seven. MR. ODA: Right. The reason for that is that under the original Board of Appeals for the Public Works Department we have a certified electrician, plumber, and building expert on it. Not necessarily required, but with this plan if we are going to expand its functions I thought it might be wise to expand the number of people so you can have some extras on it , if you want. Numbers are not that critical. And I also took out the provisions in the Board -of Appeals where Mr. Fuke was mentioning, where they can only act upon the appeals under certain types of limited situations. I removed that completely. Let them hear the facts of the case and make a determination on •the facts as they hear it without being tied down to whether the Planning Director acted arbitrarily only or on procedural grounds and things like that. Right now, that is all it is. Under the new proposed setup they will hear all the evidence and make their own decisions, just like the layman ' s court. MR. TRULSON: So I see Section 5-4.4 would be dropped completely, in its entirety. MR. ODA: Right. That will be deleted in its entirety and in place I 'm recommending. . . MR. TRULSON: The new Chapter 6. MR. ODA: The new Chapter 5. . .Section 5-6.3 under Chapter 6, page 14. -16- MR. TRULSON: That would be under the Safety Coordinator then. MR. ODA: Under that section , yes. CHAIRMAN SAKATA: Under the impeachment of elected officers, Mr. Oda, you have here 100 qualified electors of the county. Would that include the county organization, administration we were thinking about maybe a number that is not enough, but checking through this State Statute all he needs is 25 persons to start impeachment proceedings. MR. ODA: We looked at that very carefully and the reason why I put 100 there was because if you look , you can tell when this impeachment law was passed, initially. It was 1905. Just below the. . .see that L1905 , the last line of this Hawaii Revised Statutes provision. Are you all following me? The Hawaii Revised State Statutes 62-13. The last full sentence in brackets, L-1905 . That ' s the law of 1905 , chapter 39, section 60. That ' s when this statute was passed. I don ' t think the number has ever been changed. MR. TRULSON: Mr. Oda, can we by charter change? MR. ODA: Oh, yes. MR. TRULSON: We can change a revised statute? MR. ODA: Certainly. MR. TRULSON: So our charter, then, supersedes the present Hawaii Statutes. MR. ODA: Let me see, now, it says not less than 25 persons. Okay? So you can make it anything above that so long as it is reasonably related to a valid justification. Now, the reason why we selected 100 is because Honolulu, for example, in its recent charter amendment, passed 500 people for impeach- ment purposes. If you look at the Honolulu excerpts that we included in the rough copy that was given to you. . .signed by not less than 500 qualified electors of the city. Honolulu with a population of 10 times what we have on this island, has 500 signatures required. We have on that proposal right now 100. Now, 100 doesn ' t seem like an awful lot of signatures, but impeachment being a very serious type of an allegation and charge, I don ' t think this commission or any governmental entity should keep it so that any mentally disturbed person can just file a petition for impeachment and put a public official in such a situation where he has to defend himself on a frivolous kind of . situation. So, you make a number large enough so that you have sufficient number of people who are concerned and yet make it at least a little bit difficult so no fly by night group of people who have an axe to grind against a public official can, just because they didn ' t like what he did, file an impeachment proceeding ..._ The question of numbers is a little difficult but it is a matter of judgment of what is reasonable in the county. -17- MR. TRULSON: What do we presently have for impeachment, according to law? MR. ODA: Based on Section 62-13. . .When you say according to law that is what they were referring to. Only twenty-five. So the draft which I have, which was typed up, is a compressed version of 62-13 under the Hawaii Revised Statutes. MR. TRULSON: 62? Oh, no, no, I meant in the charter. MR. ODA: There is nothing. MR. TRULSON: There is nothing, right. MR. ODA: It just says according to law. . .the mayor or the councilmen can be removed by impeachment according to law. MR. TRULSON: Well , when they say according to law, then they refer to the HRS? MR. ODA: Right, which we didn ' t know existed until several days ago. MR. TRULSON: So then, in essence, what we will really be doing with this will just be changing from twenty-five to one-hundred, basically. MR. ODA: Well and refining. . .kind of compressing the language a little bit. But in substance that is the basic thing. The number. MR. TRULSON: Where would we put that in? Would we put that in the. . . ®_like in the council ? in the mayor portion? MR. ODA: Article XIII under General Provisions, Page 29 and the pages following that, might be the best place to put it in. MR. TRULSON: Would it go in then like-that area is definitions. MR. ODA: I don 't mean 13. 1 but somewhere in Article XIII. MR. TRULSON: It couldn ' t go under like, in the case of the mayor' s section 5-1. 7, remove. . . MR. ODA: Well, because then you make it apply only to the mayor. You have to apply it to the council unless you want to repeat it in two separate sections. That is what I am trying to avoid. You already have a provision in each of those. .the mayor' s section and the councilmen ' s section that they may be removed by impeachment'.. proceedings as provided by law. . .you can say as provided in this charter and slap it under Article XIII. -18- It doesn' t really matter that much as long as the language isn ' t duplicated where you put it. CHAIRMAN SAKATA: It seems the best possible place would be under General Provisions in Article XIII. MR. ODA: Offhand, I _would think so. CHAIRMAN SAKATA: This really applies to all officials in the county. MR. ODA: Elected officials. Prosecuting attorney, councilmen and the mayor. MR. TRULSON: Mr. Oda, pertaining to vacancy. This would also go under Section 13, too, under definitions. MR. ODA: Under definitions , right. As I stated, Mr. Trulson, the definition is taken from many, many court cases which we kind of lumped into one definition. Some court cases only dealt with maybe item number 3; maybe another one only dealt with item number 5 , or number 7, or whatever. So what we did was we just combined "and made one definition out of all these little problems that ended up in court. I think that and resignation are clear cut. It' s no problem on that. You have problems when number 3, 4, 5 , 6, 7, after that, you might say. MR. TRULSON: Then actually what you have .done is covered every contingency. MR. ODA: That ' s right. But it cannot, as I said earlier, it cannot cover everything. Because you would have a charter about five inches thick, if you tried to. MR. OMONAKA: Is it the county' s obligation to impeach officials. . . MR. ODA: That is still up in the air, but my shotgun opinion on that would be, no. It can be initiated by the county council , itself, or whomever. Any person can initiate that. Impeachment generally goes through the failure of the official to act or not act, or whatever, so for the county to pay for that defense sounds a little unusual , you might say. MR. OMONAKA: Yes, and on the other hand , if you only have a hundred electorates that can initiate impeach- ment proceedings , if the guy is kind of unpopular, takes an unpopular position in the county council , he can be taken to court a lot of times. MR. ODA: A hundred seems like a small number but, on the other hand, I 'm not quite sure that the general population. .the average person. .is willing to take such a drastic step because they don ' t like one certain elected official ' s view. I know there are always a few extreme cases -19- but like even in Honolulu, five-hundred doesn ' t seem like very much when' jou consider a population of 700 thousand. And, yet nobody has initiated anything like that against the mayor. Because it is such a serious kind of allegation, charge. MR. TRULSON: There would have to be a lot of proof to even get it out. MR. SENSANO: Let ' s say that there is a proceeding, are the signatories to the proceedings petition libel for this? MR. ODA: You mean for bringing, let ' s say, a frivolous action. MR. SENSANO: Yes. MR. ODA: I don ' t. . .I suppose it might be possible, but I haven ' t seen any situation like that. I know, for example, under certain kinds of lawsuits, if you lose the case that you initiated, you can be charged for attorney' s fees that are incurred by the other party defending it. MR. TRULSON: Isn ' t it true you can sue anybody for anything? MR. ODA: Yes. MR. SENSANO: The reason why I say that is that if an elected official in the eyes of quite a few, is not acting as he should, privately they say, oh, that guy is, you know. .but they won ' t dare put their names down. Now, why? Why would a person hesitate to put their name down to sort of discipline an elected official if there are no, let us say, means of the elected official coming back on these people for signing that. MR. ODA: The elected official can always ask the court, at least, for his expenses in having to pay an attorney. Not that the court will grant it but he can ask that these expenses, as necessitated in defending the action be paid by the other side, the losing side, so to speak. And so can the winning side, who, maybe they ,initiated against the councilman, or mayor, or whomever. They can ask the. judge and the judge would have to rule at that time the- reques"t"'was`.`made. Because there is nothing in the statutes, right now, that controls that situation, that I know of. MR. SCHUTTE: Stuart, as it stands now, the removal of councilman and/or mayor is referred to as provided by law. That refers to Section 62-13 that you brought up. MR. ODA: That ' s right. MR. SCHUTTE: If this is left at that then what we are working under right now is much less than you are proposing. MR. ODA: That ' s right. -20- MR. SCHUTTE: Then what your proposal is asking is to increase. that number of voters by seventy-five. MR. ODA: Well , when the nuts and the bolts of the thing is, yes, that ' s right. That is basically what the change is. The rest of the stuff that I left out is surplus language. MR. SCHUTTE: For anybody to initiate it now it would be by twenty-five. MR. ODA: Now, yes, twenty-five. And I am looking ahead to ten years down the road. The reason many of these; ,State Statutes regarding the counties are very seldom changed is because since the charters went into effect, the State Legislators don ' t pay very much attention to these general provisions affecting the counties. Because each county has its own charter and they can make whatever provisions they want in their own charter to regulate the activities that they want controlled. Things like what we saw in 62-13 are very common. They haven ' t been amended for years. Twenty, thirty, forty years and they have been on the books for half a century. They are not updated. MR. TRULSON: Mr. Oda, actually we are talking about eleven elected positions. Nine councilmen, the mayor and the prosecuting attorney. They would be the only ones that would be affected by it. MR. ODA: Right. If the commission wants to you can just take the language from the 62-13 and just change the number or even leave it as it is. That is another alternative. MR. TRULSON: I think a motion would be in order. Mr. Chairman, I move we accept this Impeachment of Elected Officers as proposed by counsel, Mr. Oda. CHAIRMAN SAKATA: Is there a second? MRS. KOBAYASHI : I second., CHAIRMAN SAKATA: It has been moved and seconded that we accept this impeachment procedure that has been prepared for us by our legal counsel . Is there any discussion before I ask the question? MR. SCHUTTE: The motion should also include the section it is to be placed under. MR. ODA: My recommendation, Mr. Chairman, is that it be incorporated under Article XIII , page 29. Somewhere within that article. MR. SCHUTTE: Mr. Chairman, could we arrive at some section within that article? -21- CHAIRMAN SAKATA: Let' s look at Article XIII , under General Provisions on page 29. MR. YANAGA: Mr. Chairman. Stuart, on the qualified electors of the county, I think someplace I read in the minutes that the County Clerk Rudy Legaspi recommended that along with your signature, you get your home address, your social security number and all that sort of thing. I don ' t know for what purpose. What is the reason for this? MR. ODA: That is for verification purposes. In case you have to contact the individual . By qualified elector is meant a person has to be a registered voter. Let ' s say a person signs John Doe as one of the one-hundred and there is no registered John Doe with any address. That is not verified, so that is out. If there is a John Doe, address Keaau, Hawaii , P. O. Box 927, or whatever it is, that can be traced, right? There may be some attempt made. You have to be qualified. The coordination has to be made with the County Clerk ' s registered list of voters. MRS. KOBAYASHI : Mr. Chairman, may I ask Mr. Oda a question? CHAIRMAN SAKATA: Yes, Mrs. Kobayashi. MRS. KOBAYASHI: So whatever is not stated in your proposed addition, the HRS would take precedence over that? . . . .this one talks about twenty days. MR. ODA: No, this proposed provision says that the court shall sit without a jury and shall proceed according to the form required for the trial of all civil cases. The trial of all civil cases requires twenty days answer. MRS. KOBAYASHI : So it does. . .it ' s about the same. MR. ODA: Procedurally, the court rules guide a . . MR. SCHUTTE: Mr. Chairman. Would it be proper then if Mr. Trulson moves to address this particular Impeach- ment of Elected Officers section to be added to Article XIII , Section 13-28? MR. TRULSON: Commissioner Schutte, I would agree and change my motion to include that. CHAIRMAN SAKATA: Any second to that? MRS. KOBAYASHI : I second it. CHAIRMAN SAKATA: Is there any other discussion on this? If not, are you ready for the question? MR. OMONAKA: We've heard complaints about certain councilmen not attending meetings and to get a hundred signatures to take these guys to court, I think is kind of unreasonable. -22- MR. ODA: You mean too low, or too high? MR. OMONAKA: Too low. MR. ODA: Too low? As I said, the only reason why we picked one-hundred--Frances and I discussed that--is because Honolulu with such a large population has only five- hundred. We kind of weighed what our population here--maybe about 70 thousand, is just about 10% of Honolulu. And, yet, we made it more than 10% of what Honolulu has. That would be 70. It would come out to 50 if we tied it piggyback to Honolulu, proportionately. If we have only 10% of their population, we should have only 10% of what they have. MR. ISHIDA: Would this number one-hundred. . . can that be related to the amount required for initiative referendum, or is that enough? MR. OMONAKA: Too high. Initiative, right now, is only 10%. MRS. KOBAYASHI : Impeachment, though, differs from recall , does it not? Because impeachment says that `you have to have some very definite reasons for getting rid of an officer. There is malfeasance, misfeasance and all this , which based on the definition seems to be very strict. There is a difference in the Honolulu Charter between recall and impeachment. It would seem to me recall is where you need to worry, because it doesn 't even say in the recall provision I was reading in the Honolulu Charter, how you can get rid of somebody. Whereas, with the impeachment you have to say very specifically these are where the elected official has failed to do his duties. It seems to me it would be very difficult to. . .you would really have to work hard to get a case on the grounds of misfeasance, nonfeasance, maladministration, all that kind of stuff. Whereas, these are the reasons you would impeach an official , with recall, it doesn ' t say. MR. OMONAKA: I realize that. Stuart, in the case of impeachment proceedings, who pays the cost for the person? MR. ODA: The person who initiates it. MR. OMONAKA: Who eventually takes over the burden of the impeachment proceedings? A government agency like the prosecuting attorney, or? MR. ODA: No, it is a civil action, so it wouldn ' t go through the prosecuting attorney. I don ' t think the corp- oration counsel would be in a position to do that either because they are a county agency and the county officially involved so they would have to probably go to private counsel with the petition. MR. TRULSON: Since this law has been enacted in 1905 has it ever been used? MR. ODA: It may have, but I . . . MR. TRULSON: In the County of Hawaii? -23- MR. ODA: I don ' t know. MR. SCHUTTE : If we do not change it to this, it will remain under that section. MR. ODA: Right. CHAIRMAN SAKATA: It has been moved and seconded that we accept the impeachment proceedings as prepared by our legal counsel and we insert it in Article XIII , Section 13-28, after County Election. We' ll take a roll call vote. Ayes - Kobayashi, Iwamoto, Noes - None Ishida, Schutte, Absent - Cadinha Sensano, Omonaka, Yagong, Trulson, Yanaga, Sakata - 10 Carried. MR. TRULSON : Mr. Chairman. In light with that amendment, we should then change Section,-3-6, Section 5-1. 7, and Section 9-7 regarding the mayor, the council, and the prosecuting attorney. I move that the wording be changed in Section 3-6, any councilman may be removed by impeachment proceedings as provided in this charter. I would like to incorporate my motion to 3-6, 5-1. 7 and 9-7. . .the wording would have to be councilman, mayor or prosecuting attorney. MR. OMONAKA: Second. CHAIRMAN SAKATA: It has been moved and seconded that we change the Section 3-6, Section 5-1 . 7 and Section 9-7 wording to "proceedings as provided by this charter." Deleting the word provided by ( law) . Do we have any discussion on this? Ayes - Kobayashi , Iwamoto, No_es - None Ishida, Schutte, Sensano, Omonaka, Absent - Cadinha Yagong, Trulson, Yanaga, Sakata - 10 Carried. MR. TRULSON: Mr. Chairman. I would like to move that the definition of vacancy be made an amendment to the charter, under Section 13-1 . Definitions. This could be 13-1 (g) . MRS. KOBAYASHI : Second. MR. ODA: Mr. Chairman. The definitions, as I stated to the subcommittee are not intended to be included in the definition of vacancy for malfeasance, misfeasance, nonfeasance. CHAIRMAN SAKATA: It has been moved and seconded that we adopt the vacancy .amendment -. and put it in under 13-1. Definitions and to be inserted in 13-1 : (g) . Any discussion on this? It has been moved and seconded that we accept this amendment on vacancy and insert in under 13-1. Definitions as 13-1 subsection (g) . -24- Ayes - Kobayashi , Iwamoto, Noes - None Ishida, Schutte, Sensano, Omonaka, Absent - Cadinha Yagong, Trulson, Yanaga, Sakata - 10 Carried. MRS. KOBAYASHI : Following the testimony from Mr. Legaspi and the Chairman of the Pension Board, could we go back to Article V, Chapter 3 , Section 5-3.4, page 11 , on the Pension Board. I move that we accept that section as it is without change. MR. SENSANO: Second. CHAIRMAN SAKATA: It has been moved and seconded that we retain Article V, Chapter 3, Section 5-3.4 as such in the charter, with no changes. Any discussion on this? It has been moved and seconded that we retain Article V, Chapter 3, Section 5-3.4 without any revisions in the charter. Roll call. Ayes - Kobayashi , Iwamoto, Noes - None Ishida, Schutte, Sensano, Omonaka, Absent - Cadinha Yagong, Trulson, Yanaga, Sakata - 10 Carried. CHAIRMAN SAKATA: Is there any section or area that we talked about last time that we missed, or anything? If not, we will go into Article VI , Executive Branch, which will deal with the Managing Director. There is more discussion on the Planning Department? MR. OMONAKA: Mr. Chairman, how do you want to proceed with regard to what Mr. Oda has proposed? MR. ISHIDA: We have a slight problem. Mr. Oda explained the whole thing and it is not on record. MR. ODA: I have a suggestion on how the concerns of Mr. Omonaka and Mr. Ishida can be handled. If we just add to the present section under the Planning Director a subsection (h')' to give the Planning Director. . . "Be charged with the approval of variances if reasonable justification exists for its approval . " Move what is (h) now to (i ) and make the (h ) to (g) . We are going to have the Planning director approve variances, in :other = words, if a reasonable justification exists for its approval. Variances, by _nature, are nonconforming. Let ' s say a setback requires 10 feet and a guy has requested a 5 foot setback , so it is automatically not permitted by law. So, the guy comes-in and says hey; gran t. ma, a variance to have this house with only a 5 foot setback. He can approve it, right, if he is convinced that it is a good enough reason for that particular request, even if it is not according to law. But, if it is denied, they have a right to go to the Planning Commission, under subsection (g ) on the second page (proposal) . . . "Hear and determine appeals requesting variances. . " So, you see that the homeowner has a right to have his day in court , so to speak , before the Planning Commission. --25� MR. TRULSON: What do you propose to add to subsection (g) under director? MR. ODA: It would not be subsection (g) . It would be a new subsection (h) and the present (h) would be moved down to ( i) . Subsection (h ) would be the language. . "Be charged with the approval of variances. . " MR. ISHIDA: Stuart, instead of saying any reasonable. . .because most of the variances , standards of conditions of variances will be finally set out into ordinances . .reasonable justification. .would that be in any conflict with the provision as stated in the present ordinance? MR. ODA: In the charter as it stands? MR. ISHIDA: Yes, In other words, would you be giving too much leeway to the Planning Director. Shouldn ' t he be restricted to certain standards, as he is right now? MR. ODA: I don ' t know what the language is. . . MR. ISHIDA: Something like hardship. . . MR. ODA: Well , that would make it a stricter test. MR. ISHIDA: Yes, it is. a stricter test. So through the charter, if we have a more lenient step, it would be. . MR. ODA: The charter one would be prevailing. MR. ISHIDA: Yes, so I am kind of concerned if we say something like that. MR. SCHUTTE: Stuart, with regards to that portion other than what originally stands right now, we want to have a strong director but if we are going to give him a carte blanche, or something like this, I don ' t think that should be done. Because, I tell you, we are getting away from the benefits of the commission that is supposed to present input. We want to give him the power BUT, it has to be talked about spelling out. In other words, we are getting all of these other trivial things of having to go through. How do we itemize it out and limit his authority? You see there is no limit to his authority, so you are bypassing the commission entirely. I just don ' t know how else we can do it. MR. OMONAKA: Stuart, are you saying now that there is an ordinance in effect that allows the Planning Director to do this? To grant these variances? MR. ODA: Not to grant variances. MR. ISHIDA: You mean on the Planning Director? No, no, no. The Planning Director doesn ' t have authority, right now, under any ordinance or anything like that to grant variances. -216- MR. TRULSON: Well , we're stating. . . like he be charged with the approval of variances, okay, this is giving him the power to approve a variance or disapprove one. But under the commission, although he has the power, under the commission, then, the homeowner could still appeal that decision. MR. SCHUTTE : Yes., I don ' t think what they are looking for is whether they are going to be denied it. I think what we are looking at now is if he is going to approve it. It is giving him the authority to approve anything at his will, without the commission having any input, is what it amounts to. What we are;saying is how do we eliminate a lot of the procedural motions that have to be done, that he can do, without actually spelling it out and without having to go through the commission. . . I think the concept of the commission is that he make all these recommendations, run it through the commission that is made up of individuals from all parts of the islandthat can contribute to his recommendations. That, I see, is good. Maybe that is the only way they have to go and do all of these other small things with it in order to protect the authority. of that commission. . . . MR. ISHIDA: Mr. Chairman. I beg to differ with Kalani on that , Mr. Chairman. The only thing I am recommending is that I believe variances are such a narrow part as far as the zoning ordinance is concerned , and that it ' s a more practical thing. A lot of times we have a setback of 9 feet where it should have been 10 feet, and it could have been strictly no fault of the owner. You know, because he just found maybe less than, a foot, maybe a half foot. But, for him to go to the commission, it is going to require him about 60 days, maybe more. He has to go through a preliminary hearing, he has to attend a public hearing, thereafter. To me, variances are such a narrow aspect, I think if we delegate that authority to the director, I don ' t think we are really giving anything that much and taking that much authority away from the commission. Zoning, rezoning requests, I think the director should not be given that authority. That clearly should be the commission ' s authority because that, to me, is policy. So, all I am suggesting is that we take this one small part and give it to the director because should he feel that the variance request. is too controversial and thinks it could be either/or, I think he will have that much sense to probably just deny it and pass it on to the commission for final decision. But what I am more concerned about are these minor variances that a lot of our residents-find themselves in. MR. ODA: And it costs money for the man to hire an attorney. . MR. ISHIDA: That ' s right. MR. ISHIDA: Many times the Planning Director or Planning Commission will recommend approval . But they still have to go through the preliminary hearing, go to public hearing, there is another $100 cost. .publication cost, you know, they have to all go through these things. To me, it is completely unnecessary. -27- I understand your position about not wanting to take the authority away from the commission but I think this exception is justified. MR. SCHUTTE: I think the issue in question you suggested was that zoning and ordinances and variances be given. MR. ISHIDA: That ' s right. That was our original thing that we asked counsel to look into and redraft. MR. SCHUTTE: What I am trying to do is think • of one extreme to the next of what can be made possible-with, with this particular provision. I can understand having to get a variance of 6 inches but 6 inches on a 7 story building or a foot on a 7 story building is considerable. . . . I just can ' t think of anything in particular right at the moment that would go pro or con , either way. I can go along with you on the fact that this eliminates a lot of expense for the property owner, for the individual. But we are only looking at one particular situation, as you mentioned for an example. Sure, I can see 6 inches or a foot, depending on the situation but we are not specifically limiting him to the specifics where. . . MR. ISHIDA: Yes. I think to satisfy your concern, I think , if we can get a copy of the zoning ordinance that says what are the standards under which a variance request can be granted, it would probably help with your concerns. - Mr. Chairman, I don ' t know if we can reach a decision on this tonight. On this particular portion. CHAIRMAN SAKATA: Should we move to defer this then? MR. ISHIDA: Yes. If we had the zoning ordinance. MR. TRULSON: Mr. Chairman. Mr. Ishida, looking at the testimony of Mr. Fuke at the 8th meeting, you were questioning him regarding delegation of the various functions and you asked him, "do you believe that the Planning Commission should be given the general authority to delegate some of the functions to the director?" Mr. Fuke replied in the affirmative. We need a language change in the charter. He said, "Not necessarily shall delegate. But whether in fact the delegation occurs, whether it is all or just a few, it would be up to the Planning Commission and however the ordinance is finally structured. " This is the same thing under discussion right now. -28- MR. SCHUTTE: . . .and I think , Bud, in that particular statement Fuke made, "delegated by the commission" . . .here, what we are speaking about tonight is outright delegation themselves without -going through the commission. MR. TRULSON: He talks about the concept of administrative granted variances applied in different counties in different states. He is saying in most charters the charter allows this delegation of duties. . . So, should we think about putting language in the charter allowing the commission to delegate this duty to the director? Is that feasible? MR. SCHUTTE: What you are suggesting then is that if the commission set out a guideline for the director and say; look, variances in regards to this particular setback whereas handle it yourself. Is that what you are suggesting. . .be delegated by the commission or through the commission. . . . MR. TRULSON: . . . .now, whether it is done by ordinance or done by charter. Can it be done by ordinance? Can the Planning Commission by ordinance delegate duties to the director? MR. ODA: I 'm not sure that that is legal now. The Planning Commission is not an executive administrative agency that -has any type of authority to do things like that because it is a quasi judicial hearing body, not a strictly administrative body that can delegate functions to a sub- bureau or sub-divisions or anything like that. It ' s not really an administrative bureau under the strict sense of the term, if we understand the distinction. Not like the Planning Department in among itself. CHAIRMAN SAKATA: We' ll defer this matter until we can get a zoning ordinance, as suggested by counsel , until we can more clarification of this. All those in favor? Carried. CHAIRMAN SAKATA: Mr. Oda, on Chapter 6, under Miscellaneous, that is all cleared up. Board of Appeals, still not clear? On Chapter 6, Miscellaneous on Section 5-6.3 Board of Appeals, do you have any more discussion on this? MR. ODA: No, not really. CHAIRMAN SAKATA: Mr. Schutte, do you have anything on this? MR. SCHUTTE: How do the other commissioners feel about this, Chapter 6? MR. OMONAKA: I would prefer to leave the Planning Board of Appeals as they are because we do have an ordinance to take care of the other kinds of appeals. We should just let it go at that. -29- Perhaps you can amend that Board of Appeals and look into not only to procedural things but other area. MR. TRULSON: If we do it by charter there is less chance of ordinances popping up from now and the next ten years. I think we should make it tougher to have anybody come in with an ordinance however they want to word it. Whereas, if we have it in the charter, it can be a much stiffer Board of Appeals. Much stronger, I would think. MR. SCHUTTE : i think this is fine because there is this other appeals board. My only concern is is it compatible to the planning portion. . . . .that was my only concern. As far as consolidating. . . . . MR. TRULSON: But like Mr. Oda stated there are going to be "experts" testifying on their own behalf, either pro or con, so we have to anticipate that the commissioners are going to be fairly intelligent and be able to judge the evidence that is given to them. MRS. KOBAYASHI : And if I remember from what Mr. Fuke said, he said in two years they had six meetings, six appeals of the Planning Board and I would assume that Public Works one didn ' t have very much more. So, if you are only having six meetings in two years. . . MR. TRULSON: We don ' t know. We don ' t know about the board. We don ' t know what they have done, right? MR. OMONAKA: There is a need for this body to give the citizens of a community a chance to, you know, instead of going to court as a resort. This appeals board, I think, is needed as one more shot for the guy. So, even though it has hardly been used, I think that commission should stay there. Separately. MRS. KOBAYASHI : I thought that maybe if we combined them they would meet more often. MR. TRULSON: Mr. Chairman. I would like to make a motion that we accept Section 5-6.3 and amend it to the charter as proposed by Mr. Oda. MRS. KOBAYASHI : I second the motion. CHAIRMAN SAKATA: It has been moved and seconded that Section 5-6.3 Board of Appeals as proposed by legal counsel be accepted and retained under Chapter 6 Miscellaneous. Any more discussion on this? MR. ISHIDA: Mr. Chairman. Akira, on this do you feel that a Board of Appeals should be retained just strictly under the Planning Department? That this dual capacity board , as proposed, will not serve its purpose? -30- MR. OMONAKA: Well , what happens to the other proposals? This is what I am more concerned with. What kind of powers are you going to give the Planning Director? The more powers that you are going to give him, I think , the more you are going to require this special Board of Appeals in the Planning Department. As the proposal is now written giving him the power to rezone, things like that , you know. MR. ISHIDA: Yes. MR. SCHUTTE: Mr. Chairman. A question for Mr. Oda. On this Board of Appeals that is with the Public Works Department, how many members are there now? MR. ODA: Public Works Department? Five. I think there are five. I 'm not sure. MR. SCHUTTE: And they sit in judgment on what? Building? Construction? . . . . MR. ODA: . . . .when I was with the corporation counsel ' s office I discovered there was one and that really surprised me because I didn ' t even know that a board like that ever existed. They asked me to be present for a hearing. That ' s when I found out the board existed. It ' s like a Board of Appeals. Same thing, only thing is they hear appeals from the Public Works Department ' s decisions. This one happened to be on electrical code violations. MR. SCHUTTE: I think the Board of Appeals that Commissioner Omonaka. . . . . .and giving the Planning Director more authority I can go along with the Board of Appeals but is it absolutely necessary that this be incorporated with the Public Works? MR. ODA: All I am suggesting here is that there was a lot of talk in the public hearings about too many boards and commissions and if this commission wants to leave matters as they are, fine. If it wants to consolidate them, here are the proposals. If it wants to change the present Board of Appeals to let them hear all matters strictly on the facts and remove the test that is presently in Section 5-4.4 and just remove that last sentence, that ' s fine, too. That is the sentence in Section 5-4.4 "An appeal shall be sustained only if the board finds that the action of the director or planning commission was based on an erroneous finding of a material fact or that the director or planning commission has acted in an arbitrary or capricious manner or had manifestly abused his or its discretion. " It makes it virtually impossible for a person to win his case. MR. SCHUTTE: I believe that that part should be taken out. -31- MR. ISHIDA: Mr. Chairman. Stuart, why seven members? MR. ODA: Because I consolidated two boards. MR. TRULSON: Mr. Chairman, would you call for the question? MR. SCHUTTE: One more question. Where does it have here the deletion of that portion. . . . MR. ODA: I just didn ' t include it. So by not including it, you delete it. MR. SCHUTTE: You delete it automatically. MR. ODA: There isa provision in there according to the State Administrative Provision, Procedures Act that spells out almost exactly. . . . CHAIRMAN SAKATA: Any other discussion? MR. OMONAKA: Mr. Chairman. The intent of the motion, then, is to delete Section 5-4.4 and combine only. It has nothing to do with any other section with regard to Planning Director or the Planning Commission. MR. SCHUTTE: The motion then is to delete Section 5-4.4 and add Section 5-6.3. CHAIRMAN SAKATA: The Board of Appeals would not be in the Planning Department section but would be under the Miscellaneous section, Chapter 6. Section 5-6.3. MR. OMONAKA: Some more discussion, Mr. Chairman. Stuart , can you explain that. . . "The board of appeals shall hear and determine appeals from the actions of the director and planning commission as permitted by law"? MR. ODA: Well , whatever the charter says is appealable, the board can hear. In other words, if the Planning Director makes a. . .processes an application to the Planning Commission and from there the guy is not satisfied with the decision, that means he can appeal it under the charter through the planning. . . . MR. OMONAKA: Then , by virtue of adopting this proposal then ,- the intent is to go from the Planning Director through the Commission, then to the Board. Is this right? MR. ODA: Right. MR. OMONAKA: So then you are changing the concept, a little bit, by adopting this? MR. ODA: Right. There will be another. . .Planning Commission. Some of these things are strictly from the Planning Director to the board. Other things go through the Planning Commission. -32- Basically, everything has to go through the Planning Commission. If they want more appeal from there they go to the Board of Appeals. The channel is just redirected into one rather than into separate channels. Maybe. . .as per- mitted by this charter. MR. OMONAKA: Yes. CHAIRMAN SAKATA: We' ll have to change that word by law. MR. OMONAKA: Why not just a period after the word commission. CHAIRMAN SAKATA: Any other discussion? It has been moved and seconded that we delete Section 5-4.4 Board of Appeals and adopt Section 5-6. 3 under Chapter 6, Miscellaneous and deleting the words (as permitted by law) and putting a period after the word commission. Roll call. Ayes - Kobayashi , Iwamoto, Noes - None Ishida, Schutte, Sensano, Omonaka, Absent - Cadinha Yagong, Trulson, Yanaga, Sakata - 10 Carried. Before we adjourn, Mrs. Kobayashi, do you still want the Managing Director to appear? MRS. KOBAYASHI: I would like him to, yes. CHAIRMAN SAKATA: Subcommittee meeting next week at 2 o' clock. Mr. Schutte, did you have something you wanted to say? MR. SCHUTTE : Yes. I just wanted to thank all of my colleagues here. It has been a really trying time and I 'm just sorry I couldn ' t be here with the rest of you during your hearings. I certainly appreciate your concern and I thank you very much. CHAIRMAN SAKATA: Thank you very much, Mr. Schutte. We are glad to have you back with us. ANNOUNCEMENTS: Next meeting date Tuesday, June 19, 1979, 4:00 p.m. Charter Commission, Hawaii County Councilroom. 2 :00 p.m. Subcommittee. ADJOURNMENT: At 8: 11 p.m. the meeting was adjourned. (z/011 � �►an Carnett CORDING SECRETARY -33-