methodology is a console initiated through a resolution and that's what you have before you today at the last guess last month we brought three bills before you get through to you deferred action on  certain dwelling types would be allowed to operate short term rentals or t d r s or would be grandfathered into allowing for a trans invocation runnels again this ordinance mana this time with some slight tweak in the language but right now we believe that the only plan developed in that would be in fact it will be allowed to do it and met the criteria that the council has narrowly crafted in the language we would be island law which is being believe it was commissioner robinson who wanted to know where it was because that's the kind information you have when you deal with primarily when you're dealing with s t r as it being b s surrounding properties and  you so this is a community plan map so you can see that is zone community plan for single family the projects island off again the bill doesn't specifically list any project this is only one that we think would be impacted using these two properties it's actually one project probably better to see it on the aerial photo with two different aerials you can see that it is a shoreline property it's pretty well spaced out you see lots of open space as a requirement of the plan developments twenty percent open space  again i do not know the purpose again there was no committee report which explained that so i that would require a little more e s p skill sets than i have so i don't know what the rationale was it other questions with regard to notice whether or not there was any notice of violations or notice of warnings yes we still have one notice of short term rental enforcement case that is open that was opened in may of two thousand and fifteen that case is still open no work has been really been done because there is again a current resolution that potentially would resolve it does not necessary zol the violations comments from which is our tracking system fesses i found that there are multiple short term rentals in iloilo complex has been sent notice of warning based on this evidence so the association has been s other information you quested with regards to beach access so i was trying to bring up some type of google street view based on our research the only access that we found view was not i did not have time to drive out to the west side shoreline access study that was done as part of our general planning committee plan process the research firm that conducted the study indicates that there is a shoreline access at this island complex when i use google street view i do show gates but all of them are all of the access points to this project is a gated community  on the one that just to the south of this in the area there is a shoreline access sign as well as you can see there's a gate there but it but there's a sign there that shows that you would be able to petition the public would be able to access the shoreline again this bill is just a generic bill it is not property specific so it would be nearly impossible or would not be recommended to try to attach any type of condition regarding shoreline access to this type of bill this point in time  basically did because again it does not impact them at all so again the resolution are merrily we just read to you for your comments and recommendation to you i think we previously went over this extensively at the last meeting as a refresher course we don't like target projects specific resolutions however from the aspect of does it have an impact on purely affordable housing not really because it impacts housing you probably how it trickles down from an economic standpoint it probably has a minor trickle down effect on as far as rental  but again this is just dealing with grandfathering in or allowing for short term rentals at the plan developments and that's how the council has chosen to draft disability this time you have any comments or questions at this time code which is the plan development section it does some minor language changes but the main main crux of the amendment is to add the language of include duplex development was operating as a vacation rental on a before april twentieth two thousand nine hundred eighty one the plan development is located on partial with that lease some residential district zoning the plan development consists only of  duplexes or multifamily dwelling units or two combination of single family dwelling units and duplexes or multi family dwelling units and so based on this language that's been added only to two complexes that meet that notice the warnings went to the condominium complexes as it was a leasehold property therefore went to the property owner which technically the property owner is the common condominium association has a long term lease they were granted they were sent the notices of  warning or violations and then no action has been gone forward because i would guess this resolution came down as to whether their income have stopped i don't here sort of flying his way through and the argument is is there are going that they are always grandfathered in they've always been running since the day it was  think primarily what happened was there was bantered around to have it included at the time not every single resident at all was in favor of it but as time goes on people ownership changes and i think that's where those who were opposed to it are no longer there and so that's where now they're able to get some kind of consensus to get this cleared up for the for them because i moved to the mainland ten years ago came back and go gee i don't know you guys change the laws about can he go talk to a call to person to get a resolution to try to figure out his or is the path supposed to be through the mali planning commission i mean this is just a left turn to sort of going straight same they're arguing that they reasoning behind the word rescue mr hopper so the whole purpose behind behind this is that at one point this was allowed and then it became not allowed i think one thousand nine hundred one is the date picked is that's when it became no longer allowed the issue with these it was with the woman at least is that their order to establish your intitled to operate as a non conforming use each unit has to establish that they didn't did not cease that use for twelve consecutive months so you basically have to hundred one that rather than saying every single unit is going to have to prove that they continuously operated that they're going to say the whole area can operate as a t v are it's a it's a legislative issue that the that you can you know consider it's it's it would allow this area to be used as t v are in perpetuity going forward as an outright permitted use the just justification for it would presumably be that  changed they were using it as t v hours and the law changed and now it's very burdensome for them to prove that they continuously operated during that entire time it's a legislative option for the for the commission to consider or they could eventually come in and get a change in zoning hotel or they could come in and get a get permits on a per unit basis so there's a variety of options but i think this is something that the council and not can advocate on their behalf because i don't know exactly with their justification was butt that's i think what was behind the poem on a bill and kind of the reasoning behind doing this doing this legislatively discussion i'm not poor guesses development or the resolution i just think it's better interests legislation i think it's people finding a way around it instead of doing like every other person would be and they've put  application in the come through a console and mentor commission and we we see year name i think this is accepting this is you know special legislation for people who have a special connection or a group or legislator and anybody else  any other discussion go see my legislature to try and change it because if this is what i have to begin with then this is what i should keep i don't necessarily agree with the way that we thought here but i do believe we've got to get the p also this is you know this is it went the opposite way but it still got you know what ended up for them anyway so i did it i just wish they might have just done it you know like every i could treat everybody the same that's all thank and may twenty seventh two thousand and fourteen the commission went through the same process that you're going through today and decided to waive the review and allow the directors to sign off on a two year extension  highway shoreline protection project the proposed project is an engineer solution which will include the installation of boulders on an approximately nine hundred foot long section of be along behind all pilani highway north of al town to protected from eroding shoreline and mitigate damage to the highway shoulder that has already occurred through previous high wave action as you all are aware people on the highway is the main vehicular arterial between west permit from the board of land and natural resources a department of army permit from the army corps of engineers and a water quality certification permit from the state department of health i know that the project has also received a federal exclusion approval in september of last year for the federal funds that will be utilized for the project construction to give you an update on where we stand with the project the state department of transportation has been all the project and issued a notice to proceed to the contractor in march of this year however due to conditions that the project needs to comply with initiating construction by may thirty first of this year was unlikely and as such we filed the time extension request there are a number of factors that are affect the construction start the most importantly the avoidance of a coral spawning season which is one of the conditions of the central fish habitat consultation that the project understood with the u s fish and wildlife service and the corresponding season is is generally june through august and we're also hoping to reduce the chance of being affected by high coastal wave actions during the summer months currently the plan is for project construction to start in september of this year but there will be some preparation work that will occur in august of this year the project is funded and ready to proceed and we respectfully request the commission concurrence on the two year time extension request to initiate construction of this project which will help to protect tunnel people on the highway thank you very much and we have we're here to answer any questions you may have question the only reason i would suggest that we asked them to come before the commission is because on a separate project that they've done  project that they've done by law they managed to put it in two hundred stanchions on the highway probably to separate their construction work from the traffic lane and every been makes me kind of worry that the guys that are in charge of the project really have no idea what drivers on the highway when they create something like that and i'm just wondering whether or not they're going to do something like that again i like the project from the standpoint of the drawing i think the fact that the using guardrails instead of a four foot high wall allows for use to the ocean as compared to the walls that put up and other locations which totally obliterate the ocean for fifty nine years but to me it's an opportunity just to communicate with the higher ups to let them know some people are unhappy with the things that they've done in the past not to do it again time extension for the while and that's seven multifamily residential project originally a someone two thousand and six zero zero three eight to be extended until april thirtieth twenty eighteen to initiate construction i' included in your packet a site plan as well as the overall drainage summary and minutes from the last meeting we're actually here and i'll go as chair and had asked about  is comprised of seventy five units in fifteen buildings on a thirteen acre parcel in wailea it has received of course its assume a permit and plan development approval steps one two and three it has provided workforce housing as required by the ordinance and also has had its water system improvements installed as well  lateral current status of the work on the project we are have submitted our plans to the department of public works for the improvements that are to occur within the ri standards so those plans have been prepared and submitted to the department of public works for its review and approval and they've been very good about working with us in moving that forward  so i can't help but go to the reason for your time extension economic recession yeah it was the timing was selfish i guess is is to say ok and i understand the answer what i think was one of the increase that you put out there you are correct that the parcel was approved in two thousand and seven just before the economic downturn since then we have of course embarked on a couple of different projects two and why lead one in key that are currently in progress so we have you know every intention of alternately moving forward with this project as well currently  which is a work force housing project so just just to put it out there i mean to the extent your question is what we've been doing lately you know we have been engaged in a number of projects are working  start of construction is april thirtieth twenty sixteen hence our request for an extension  if you don't know it's a i don't know if it was but this was a project that fulfilled the requirements at the higher fifty percent you know level that was in place in two thousand and ten when the units were provided  this was a project that was led by a former colleague of mine who's no longer with us quite where she sighed don't i'm not up on the details of what transpired in the early years of the project but i do know that the agreement has been is this two years going to be enough or we're going to see you in two more years asking for another extension we are we have every intention of moving forward i there are so many variables with projects especially projects at this and this sector of the market i hope not to be back in two years but i if i am please don't hope you don't have a problem with that yeah it is my recommendation and there's a lot going on in and i think in two years there is some a might be a little bit harder to just revision because of all these projects going on that's just my opinion but thank you thank you very much have for you orientation workshop number two with a whole bunch of different materials to cover politics and the first one you'll get from a whole lot of doing a little bit different this year i'm kind of grouping him together because they are very similar we'll see how that works so starting off with the bed and breakfast home permit the bill was passed in two thousand and eight so we've had quite a bit of experience with it there's currently about one hundred ten permits out there and the cap is four hundred so there is no cap for molex or the nih i did include in your packet what just came out today on the website is a printout of the most current list of the bed and breakfast as well as the short term runnels and conditional permits that also authorize only one of you had reviewed the bill before it went right now we have about one hundred sixty permits and again the cap is four hundred  the short term model home bill in it included a two year review of the bill so in twenty four eighteen the planning commission reviewed those amendments and then the council planning committee spent about a year and a half again just discussing those amendments this presentation was done for your end of april session so at that point they had just approved the bill a first reading second reading happened last friday there were some changes all kind of talk about that so it's still not official it's going to go back to may twentieth  also last year that this commission sent a letter to the county council recommending a moratorium on short term on all homes the review of that letter was supposed to happen in the planning committee in march mike white was sick that day so it was deferred so that will be discussed this summer the purpose of both of the ordinance was to establish a permit me process with standards and restrictions there was a real desire to legalize what was already happening on the island it wanted to allow small businesses an opportunity to benefit from tourism provide a visitor experience that's an alternative to hotels and resorts and most importantly to this commission they wanted to do this while retaining the character of neighborhoods that's where you folks come in there are the basics distinctions between the two with a bed and breakfast the applicant must live on the property however it doesn't need to be in the devouring it can be in the cottage or the house just has to be on the same team k parcel and for short term rental homes the applicant is not required to live on the property but they have to have a manager and that manager needs to get there be a licensed real estate agent it could be the applicant themselves that they meet the other criteria or a family member anybody who is the manager has to live within thirty driving miles or how about office within thirty driving miles and they are required to respond within one hour after receiving a call and they have to be available twenty four hours they don't do that it's a permit violation the caps are almost the same for both however with the short term rental homes planning committee they did adopt an amendment to reduce honna down to thirty a lot of concern about affordable housing being eaten up by short term vacation rentals both bed and breakfast and short term runnels can only have six bedrooms on the property in both dwellings only three young molech high you may see some conditional permits come through if there's more than six bedrooms so won't be a short term run a little come through as a different type of permit that's approved by the county council corporations council also put in many safety requirements which i know you've heard as we go through the different permits they all have smoke detectors in the bedrooms a certain size fire extinguisher that's larger than your tiny small one you sometimes see after a fire escape plans in each of the bedrooms they must be built to code and a home inspection by either a public works inspector or a private association or some american society of home inspectors certified home inspector comes through the house to make sure that it's safe and then they also have to have house policies posted in the rental and i just wanted you to see what those are they also have to be put up on the website so that people understand when they're renting  the last one for short term models no group gatherings they need to understand if they're coming for a wedding they can't have a betting reception council that's really clear about that the m p s are different because they must serve breakfast but once the council passed it and department of health stepped in they realized that was really limited what they could serve i put some examples on the bottom that are ok not much else it has to be something that can sit out and not go bad there were when the amendments came to her bed and breakfast we did propose eliminating this requirement the bed and breakfast amendments haven't gone through council yet a short term rental home requirement that's not for bed and breakfast is the house has to be built five years prior to the date of application for the short term model home permit that's how it is now last friday when the council heard the bill for the second time bob carroll from honda a council member proposed a new amendment where the owner has to own it for five years of that people are buying existing homes were long term rental that are long term runnels and converting them into short term and then reducing the inventory of the long term rental housing inventory  there was some discussion about getting the language correct so this is going to come back on may twentieth and be discussed at that point for short term rental homes there also needs to be a sign displayed out front so that if a neighbor if there's a complaint they don't have to knock on the door shows what the telephone numbers for the manager as well as the department again if they call the manager of the manager has to show up within an hour and then in the bill there's very specific language about how to revoke a permit and what the criteria is for not renewing they're the same if they provide anything applicant for provided any false or misleading information if they're delinquent in their taxes the manager doesn't show up within an hour if we have police reports or other disturbances related to the short term ronnell warnings are violations have been issued they're not compliant with their permit conditions or other government regulations we've had that come up a couple times and then if the permit is revoked or not renewed the department can't accept a new application for two years now that's a new amendment for twenty sixteen in the original bill there was attempt to protect affordable housing in this is only applies to short term mental homes you can't have a dueling unit that was developed pursuant to chapter two a one h that's the fast tracked process for short term rentals and then bob carroll's amendment that's going to be discussed in two weeks is also an attempt to protect affordable housing so we get a lot of questions about taxes let me bring these permits to use i thought i'd just address that now bed and breakfast properties do not receive a homeowner's exemption even though the owner does live there so that's removed the first year the permits granted bed and breakfasts are taxed at the commercialised resident residential rate and short term i know homes are currently taxed at the commercial great and then i just wanted you to see what those rates are i believe these two so twenty sixteen amendments the attempt in the future is to align the bed and breakfast bill it's going to be a while before that happens when it does we'll come back and explain to you what those changes are but for the short term not all homes the council added a properties on the one parcel were good or one or both have come and it's going to look a little different in the future council also put in a minimum ownership of fifty percent of the applicants have to hold mets not for b and b s right now but it will be for short term runnels and then out there finding someone qualified for managers also interesting towards the very end of the year and a half council member got a spice a put in a new requirement that the applicants have to sign a certification  where the property stating the property has not been used or advertised as a short term rental or they must show certain things if they had been there's a grace period that's going to be given for people to come in that separate i'm going to go into that in a minute so they have to show if they did rent they must tell us when show that they had a tax license and paid those taxes they have to pay and after the fact fee that's being established by council right now during the budget process and they have to pay if there's any violation fines they need to pay those also that certification needs to tell us if that applicant has a financial interest in another permitted property we have had some cases where people have had interest but have not been the applicant and we thought it was appropriate that you folks review those applications we did ask you during the discussion about amendments do you want to just lot or not it was decided that you can decide on a case by case this would also apply to husbands and wives so you'll see cases  husband owns one in the wife comes in for a second one now that the new trigger they also need to acknowledge and sign that they know this false information could lead to a the revocation of their permit and the example given during this discussion was a trip advisor comments if they signed a notification saying i didn't operate and then all of a sudden a year later something pops up from two thousand and fourteen showing they had been parading then we can revoke the permit and they cannot apply for reapply for two years ok interestingly it was the industry that asked for that they wanted to weed out bad apples immediately then that we had a unique process where you got a two year renewal with no complaints this year the amendment is that the first permit can be issued for up to three years or less to mitigate circumstances so the commission may want to take a look when there's a lot of protest the first period is three years we may recommend lesser you may want to recommend less in those cases enforcement is advertising shows that are operating we no longer have to send out somebody and take a look at the house and write down the rental car numbers that it's really hard in the other counties when they try to do enforcement because they don't yet have this language so right now we can just go on the web and if there's advertising that's operating we can issue the warning right then and there so currently the ban is applied at the time of a notice of warning it's just if you're operating so if we go on we see your advertising we can apply the ban which either we do through the notice or via a notice of warning that sent out or if the current division gets an application in and we punch in the name and up pops all the advertising we can then write the letter right then and there it's used as a deterrent and that's was the whole point of putting it in in the first place otherwise people just wait to get caught before they apply so that was the reasoning so it was discussed a planning committee several times it was passed out of committee with a compromise with a six month ban i mean the six month grace period for letting people come in we'll talk about that with the next slide at the first reading of the bill the  rental association lobby the council to have the ban apply after a notice of violation had been issued tom curley spoke in his testimony that he really wanted to bring everybody into the the permitting system into the process he didn't want to just ban people and have them continue to operate illegally council member john couch talked about the need for due process that he wanted people to have a way to contest it did pass at that meeting the department wasn't there we weren't able to comment on it it was quite a surprise actually to us when we found out how it happened at the second meeting that happened last friday i just went and watched the meeting yesterday morning on t v and laycock council member and the cochran put in a new amendment to get rid of that old amendment and have a just see how it was once you're caught the ban is applied they did discuss and only went over the discussions and it happened at planning committee where they did talk about the due process so it is given the ban is given in a written notice so that people once they receive that notice they can either let the department know that their non conforming that they forgot to put their permit number that the advertising was from a former owner that it's not their property anything that they want to show you know we can then take another look at it or they can also apply to the board of variance in appeals as a way and go to them and that is the process it's also the same due process for notice a violation so that amendment did pass so now we're back to the way it is what that did though is it triggered an additional second reading as well as bob carroll's amendment so we're hoping in may that we'll get final closure on all of this at that meeting we were going to ask you what you thought which option you look like that's already happened ok so we're going to have another chance to talk about short term rental  homes member of the medication relish sociate and who actually is left over the split on how they wanted forstmann wrote a bill asking for stronger and force make provisions for mike white has introduced it it was supposed to be referred out of committee at that same meeting in march when mike got sick so they're going to wait till the summer when budget is done it will be referred out and it'll come back to you for comment probably end of summer maybe beginning of fall it will go out to the three different planning commissions  ok so what was that compromise amendment that i talked about earlier the six month grace period for illegal operators who have previously been banned we had a number of them come to the committee hearings counsel really does listen to people as part of the process so the agreement was that you can come in during the six months and it'll be till the end of the year you have to the entire period that you were operating without a permit you had to show that you had a tax license and that you were paying your taxes is interesting they asked one of the testifiers did you have a license and he said i just got it you know and then they said no did you have a during that period and it really made them think about who they wanted to come in you had to show that you had to show  that you're going to pay real property taxes at the rate that would have been applied we're not quite sure how that will work you will figure that out with the real property tax division you had to claim no homeowner's exemption for the tax years in which the applicant  operated typically these are people that don't live on the island and that homeowners exemption wasn't removed when they went away and you have to show that you ceased and you didn't resume operation so you're going to be seeing more short term rental home applications during this grace period and we will give you a history of the application in the report so you know all the background information so back to the beginning here the council's intent was that most permits are approved administratively by the department however they feel really strongly that you should review some of these applications so for bed and breakfast triggers that's when there's another one within five hundred foot distance the most typical reason you see a bed and breakfast home permit or when writ protest compromise comprise thirty percent or more of owners within a five hundred foot distance really hard to meet that trigger it's only happened once that i know of and that's when the property was behind a condominium association so you had a lot of people that were adjacent to other ones but they typically don't happen short term rental home triggers are a little more stringent kind of learning from the bed and breakfast home so if there's another  within five hundred feet they did change that to two now within five hundred feet so you can have one and then there are written protests which i'll go into on another side again if a variance was obtained to meet the requirements that's only happened once and then  move the trigger for hono where if you had four or more bedrooms they want people to be compliant so they wanted all the rules to be consistent from all the different areas so the most common triggered the recent you see applications for short term  homes is because there's another one within five hundred feet the department we tried to get a density cap i think it was commissioner ivan lay who said we were reviewing the eighth one within five hundred feet and he is enough enough what's the right number so we thought oh interesting that's let's throw that to council and see what they think so we said when you get five within five hundred feet we can accept an application well council kind of surprised us and told us you know some areas it may be appropriate and we have a lot of faith in the planning commission so let them make the tough decision so what they did instead is that they moved it to it's the second operation within five hundred feet that will trigger the hearing they want to go to three they went to two so now you can have one and you can approve the second i know you can have one it doesn't trigger it anymore so you'll see maybe less without i don't know it will be interesting we're kind of  r yes they do trigger it ok so protecting the neighborhood character the second most common trigger that you see in application is because of neighbor protests the short term rental home is different than the bed and breakfast it's much more stringent when you have two or more adjacent or across the street neighbors file a protest it comes to you and then when you have within five hundred feet near forty or more lots it's thirty percent and when there's less than forty it's only fifteen percent and that testimony map really is from one of my projects from last year you just heard the do you know it was the night you heard the d n o just a couple months ago so i just wanted to go over permit to niles there haven't been a whole lot but there's been enough council was really clear that it's the planning commission's job to protect residential housing in the character of the neighborhood so they put the triggers i just talked about and so that you see a certain number of these  the department writes a decision in order which is adopted by the commission when a permit is denied by this body the decision in order to list out the reasons why the permit was denied and then the planner only has the official record in which to list out those reasons and the only legitimate reasons can be listed so plan all planning commission decisions are appealed directly to court the court reviews procedure by reviewing the official record and that official record is the minutes of the meeting and the decision in order with the findings of fact and conclusions of law so core counsel only has the d n o to defend the planning commission so when you're denying a permit it's good to get everything out in the minutes of why you're doing it it's important to use a legitimate reason why you're doing it that that relates to the applicant pool rules for that type of permit so every staff report lists the a political regulations so only those regulations that can be used in that decision in order so for example you're fortunate with the short term model home law that there are a lot of criteria that you can use it's not real general and veg it's extremely specific to homeowners letter if a short terminal home use is not allowed you can cite that as a reason noise perhaps the streets a little unusual smaller lots than larger lots the number and distance from the subject parcel to other short term model homes again please mention that into the record that number and the substance of the protests also are very important for existing or past complaints about ran a lot for a chanst you're probably only see that during the grace period after that grace period there shouldn't be anybody coming in that has a record of operating an existing or past noncompliance of government requirements and to what degree of cooperation to the applicant have and they came into compliance so just as a quick summary state your reasons on the record for why you're denying it don't wait till afterwards to look at the votes been taken let let us know before the vote have your reasons based upon the permit regulations to open up to that staff page in the beginning usually one of the first three pages of a list a mile out don't say on official things during the meeting those comments are in the minutes of the judge takes at and review all written materials before a meeting ok the last amendment i'm going to talk about before the council is short term mental homes as an accessory use the council made a decision to move short term rental homes into entitle nineteen the county code into the accessory use so they implemented farm plan used to just be recommended highly recommended however now it's required however the state law still has them as a special use so the state's special use is still required ok which brings me to part two even though most bed and breakfast and short term ronnell home permits are approved administrative really you see a number of the state special permits that's when the property is located in the state district but we're talking so as you know from your last orientation couple sessions ago there's three layers of land use regulation and why we have the county zoning that's title nineteen i just told you about we have the community plan designation and then we have the state land use district and that's  statutes ok so how does this apply to bed and breakfast and short term rental homes most county districts allow bed and breakfast with the permit do you did recently see a conditional permit for a planned development where it wasn't allowed so they had to come in that was the two that you had on the one day and then there's four state land use classifications urban where it's allowed were lets allow its state conservation it's not allowed at all can't even take an application and state ag it's allowed with the special permit review i don't know if this is current showed you this again in the last orientation you had but there's a lot of ag for culturally zoned properties in the state of hawaii and it hasn't changed much since one thousand sixty nine instead but what's happened is the permitted uses have been expanded but the districts themselves haven't so what that means is you folks are going to see a lot of state special permits and with that it's for use any use that's not permitted in that district so you see him for a variety of uses i haven't seen a badge in plant for a while i think actually kathleen took the last one to you the maui veteran cemetery came more recently boys and girls club and then special events are coming to you more frequently now and then you see the bed and breakfast and short term rental homes so the purpose is to allow these other uses when criteria certain criteria are met the planning commission is the approval agency when the project area not the parcel but just a project area is fifteen acres or less we talked about this with the homeless camp in west maui it's not the entire parcel of where the activities occurring otherwise it goes to the state land use commission which is a much more involved lengthy process so you see a lot of fourteen point nine project areas so you're going to see a lot of the special permits associated with the b and b permit however you're not reviewing that permit you're reviewing the special use permit so it's really important you use those criteria when you're reviewing that permit so the first one the guideline is actually written in the rules not in the code itself the use cannot be contrary to the objective sought by chapter two o five which is gives the different state classification and how we take a look at that here is it's the implemented farm plan one of those goals is promoting agriculture so we use the farm plant to show that you're meeting those goals farm plan requires that over fifty percent of the usable land is an agriculture or in agricultural conservation however it's up to you to determine how strong that farm plan is and if you're think it's strong enough to meet those goals you can look at the state office of planning comments for that or you know you can just take a look at the plan see what you think of it every part is going to have the implemented farm plan approval in that there's a big distinction between having a farm plan on paper which you may need to build your first welling versus having it implemented farm plan which you need either to do the second  do this type of use the implementation means that's in the ground and somebody from the department goes on looks it's typically somebody from zoning that goes out and takes a look and make sure it's there again so what are the a political regulations that you're using when you're reviewing these permits the one that you're going to come across the most is the desired useful not adversely affect surrounding property that's going to come into play probably any more than these other ones typically for being decent short term runnels you're not having public agencies have to have to provide rose street sewers drainage you might with other uses but not typically this one unusual conditions and trends have risen since the district  justify we have talked quite a bit about the land upon which the proposed you sought is unsuited for the use is permitted within the district if you feel that way we can talk more about the details as we deal with those permits so my best advice to you is to read the staff report we're giving you a lot of information today and also i know we did a couple weeks ago we prepare a detailed report for each permit request it has both a political regulations this is for any report that we give you and the report goes in  analyzes the projects against those regulations and probably the most important thing is ask questions we don't judge you on your questions we love to answer them this is our full time professional job we don't know the answer we're going to ask our director who know the answer i'll tell you what it is i don't think we're going to be able to send out packets two weeks in advance there's just too many too many things are happening the last minute there you of her job is to talk to you about discrimination in certain counties policies and apply and or all my examples are from water department so i handed out my presentation and also the county policies and hopefully in this situation is planning commission members we don't need them but they are there and they're in place in case the situation should ever arise ok now the policy counties policy against discrimination is simple no discrimination or harassment or retaliation of employees public individuals under consideration for employment and it's also in the policy against discrimination the second from the bottom paragraph it says officers are agents of the county members of the county's boards and commissions are also covered by this policy ok and so that's why you are  hearing this presentation because it affects everyone in this room the policy prohibits discrimination in any any form including verbal written and physical harassment in a nutshell discrimination dismissed decisions made solely because of an individual's race pregnancy sexual orientation and so forth the whole list is in the policy in the very first paragraph and there's another list right  there examples of discrimination could be unequal terms and in dish and based on any of those protected classes or harassment that serves no legitimate purpose or retaliation say someone files a complaint about something whenever i do an investigation one of the things i tell everyone that i'm talking to is that retaliation is prohibited and that would be followed up with another investigation if needed it's illegal to discriminate in terms of terms conditions privileges because of any of those protected classes historically that wasn't always so you can see that wages back in the day were based on race not anymore thank goodness or even recruitment was based on race back when wanting certain types of people for certain positions of course that's illegal these days other examples at least in terms of employment you know would be only allowing a certain gender to do certain things like take flex time or only allowing men to work overtime or something or not giving training opportunities equally or assuming that certain people are not able to learn things like not giving older employees computers  so those would be obvious examples of some discrimination that would not be allowed on harassment is also prohibited and that can be various forms of verbal harassment could be those jokes that people think are funny but the people hearing them might not think they're funny might be actually offensive you know the slurs those kind of things like physical harassment and this is where the sexual harassment included to inappropriate touching things like that and then visual forms you know those cartoons or things that are inappropriate or you know calendars certain types of calendars discrimination based on sex could be unwelcome behavior  discriminating or making decisions because of pregnancy or breastfeeding treating them differently in terms of pay and privileges or like i had mentioned training here at the county pay is mainly determined by salary ranges in the union contracts so we don't really have that problem so that's one good thing we don't have to worry about here sexual harassment could be a request for favors making conditions  certain requirements based on giving in to certain things that are an unacceptable and the key thing is that the advantages are unwelcome understanding is you know someone could ask a coworker out for once but once the answer is no then they need to stop  and it's the reasonable victim standard and that would be from the victim's perspective ok the person who was making the joke asking that person out could think oh they don't mean anything or no harm intended but it's what the receiving person is feeling and  hearing pregnancy discrimination because only women can get pregnant that can be considered a form of sexual harassment or sex discrimination excuse me in situations where we've hired people women who are pregnant they have been given given leave without pay and then  return to work once they're able to they can pump milk or take breaks to breastfeed if they need to disability you see it on all of the meeting agenda is a bottom line if you need special accommodations let us know and we'll provide that thing with disability is at least that employment is that you have to be able to perform the essential functions of the job with or without a reasonable accommodation a lot of times those accommodations are very  simple for someone like say we've had blue collar workers out in the field they need long sleeve shirts we can provide that problem solved or someone has a spinal cord injury we can provide them a special chair problem solved so a lot of times it's working with the employee and seeing what it is that we can provide that is reasonable that they can perform the essential functions of the job and it's also too not all disabilities are visible and sometimes you can always tell but the key thing is that they are the disability would limit a major life activity and that is permanent and like i said but they must still be able to perform essential functions with or without an accommodation and i said you know some people don't look like them disability but they do and some people you think oh maybe they can they do this but they actually can discrimination based on religion is of course prohibited to know on equal terms and conditions no harassment reasonable combination when things seem unfair there are certain questions to ask is this person a member of the protected class is there an adverse act  did the adverse act happen because of the protected class and is there any legally valid defense as to what happened if the first three are no and the last one is yes then it's probably me was it yes or no if the first three are no and the last one is yes then the discrimination is probably illegal a lot of times people will come and ask and we will look into it because sometimes there's more going on than what is on the surface if you see something that appears to be discriminatory or something that you know doesn't sit well with you you know please ask her please bring it up you can talk to the board chair or you can talk to the county's ego officer who is rough thomas or will or michelle or my complaints have gone straight to the federal commission or the civil rights commission and in those cases we do work closely with corporation counsel on response and getting those agencies the information they need to make a decision so that has happened also and also if you were to feel that you have been discriminated against and you didn't weren't it wasn't addressed adequately enough for you here you could always take it to the agency  that we try to keep complaints confidential to the extent possible we can't promise confidentiality especially for working with a their agencies like the e e o c or the civil rights commission or any of the unions because we don't know if they're going to be completely confidential too but we do and like i mentioned whenever i talk to anyone i always let them know that retaliation is prohibited and we would investigate if we read any reports about it and the policy covers all county facilities like the swimming pools the boards the commissions the employees it's applies when you work with contractors members of the public when we're you know as members of the as employees of the county when you're dealing with those other entities so that's basically the policy in a nutshell i also handed out the policy of violence in the workplace action plan and we go over that with our employees every year there is a procedure in place in terms of conducting an investigation if anything were to happen here and you felt that it was a violation of the policy we would investigate it we tell employees if you feel the need to call nine one one you're certainly welcome to do so you know this isn't limited to you to just what we would do administrative they saw the policies are in place if they're ever needed and you know hopefully we don't have to use them here but it's there if you need is there any questions about either of these so if you can remember the one hundred eighty days and treat others the way you want to be treated i think we'll be fine and thank you he can't be heard here today so i'm here to give you an orientation on the next several items on the list and many of you have been through this before if you have it's a good refresher because these are things that will come up at every meeting usually that's why we have a corporation counsel there you're not expected to memorize every item but you you are expected to know the laws in general and basically know enough to know when you when an issue comes up and when you may need to ask for advice but again on the day to day issues that's why you have a deputy assigned that will deal with the issues the first item to to discuss is the sunshine law it's found in hawaii by statute chapter ninety two it's a state open meetings law to attend the meeting to know when the meeting is and what will be discussed at the meeting and to offer testimony at those meetings and basically for the public to be able to participate in your decision making in understand the reasons behind your decision making and know when it's made what is required all of your meetings have to be open to the public anyone interested needs to have an opportunity to basically provide testimony in writing in addition people need to be able to have the opportunity to present oral testimony on any item on your agenda and the the commission can can put a reasonable time limit on that testimony is typically three minutes but that is something that the sunshine law does allow which is a meeting basically a meeting as defined in h r s as the convening of a board to make or deliberate on a decision upon a matter over which the board has or is likely to have supervision control jurisdiction or advisory power  and in at your meetings the first issue is a quorum of members is required to do business that means you have to have to have by state law a majority of members to which the board is untitled you are entitled to nine members  board so you need five members to constitute a quorum and therefore in addition you also need to have a vote of a majority of the members to which the board is entitled so in this case that's five of the nine members need to vote to take action that's regard of how many people show up if you have nine people show up you still need to have you need to have five votes to take any action if you have five people show up you still need to have five votes to take action so it has to be unanimous if you only have five members present  there's several other restrictions the sunshine laws will place on you more than two members of the board cannot gather to discuss board business and no serial communications are allowed by means two of you two of you are allowed to get together to discuss board business you cannot make a commitment to vote or seek a commitment to vote a certain way but once you discuss the board business you can't then go in terms of the next person and discuss board business with them or are meet another member that's considered a serial communication once you've discussed board business with somebody you can't discuss it with somebody else outside of a meeting and this includes by phone fax email or social media the medium doesn't really matter a general good general rule is don't discuss board business outside of a meeting and you won't have problems without social gatherings don't discuss board business you may see each other outside of meetings now you don't have to only discuss word business obviously not everything in the world is under the jurisdiction of the my planning commission so you know you can talk about other things but you can't talk about board business that's those are items that are going to basically be on your agenda or they're likely to come up on your agenda certainly pending projects and land use issues you should avoid discussing outside of meetings board business with nonmembers that is generally the sunshine law does not apply to those cases however if it's dealing with someone specific permit application due process may apply meaning that you really shouldn't be discussing that person's permit outside of a meeting and meeting and getting additional information that the whole board doesn't have in title meant to you should think of yourselves maybe as a as like a jury that's going to be deciding on someone's case so you should really look to have all of the evidence presented to all the board members in the same form in fact when you vote in a contested case which are a lot of your permits or you're required to consider all of the evidence of the record before you vote so discussing someone's application outside of a meeting is generally a bad idea as well with with non board members you also don't want to make statements that are construed as either you're against the project or you're for the project before the project has come before you cause then someone may say you've been prejudiced and you can't vote on the project so i would keep that in mind discussing really discussing anything that has to do with what's going on in the commission can be can lead for if there's some someone who's disabled or you need to have that that ability for people to show up in and view the meeting from that location there's something called a permitted investigative group it's one of the exceptions to the sunshine law two or more members of the commission but less than a quorum can be assigned to do certain things that means that once they're assigned they can go outside of a meeting and discuss board business and do board business under certain restrictions get it has to be less than a quorum so less than five so two to four and what has to happen in order for that to happen is that the scope of the investigation and the authority has to be defined i want to hear meetings all findings and recommendations must be presented to the entire board at the meeting at a meeting so first you're assigned to do whatever it is your you need to do at the meeting and that can be two to four people and then at another meeting they wrote that group report back to the full board  and then it's not until a subsequent meeting after that that you can deliberate and make decisions based on on that report so keep that in mind this is sometimes used for like rewriting rules if there's going to be a lot of detail work you don't want to have an open session  that you can't have that assigned so that's something to keep in mind and so the bottom line is that means it's going to take a minimum of three meetings before you can take action on that type of that type of group interaction  in addition the commission can assign two or four two to four members but less than a corum to present discuss or negotiate any position the commission has formally adopted at a meeting generally the commissioners shouldn't represent the commission unless also an additional exception a while ago if there was less than a quorum you really couldn't do anything at your meetings i mean if you only meaning if you only had four people you really had to cancel the meeting and and that led to problems because maybe there somebody coming over from the mainland or coming over from a lot who who who had to leave and didn't want to come come back or it would be substantial a substantial burden for them to come back in the sunshine law recognize that  then it was amended to basically allow that cancelled meeting at that cancelled meeting for the for the for a few were members to take testimony to ask questions of the test fires and to hear a presentation of the commission however can't deliberate or make any decisions until the next meeting and at the next meeting there has to be a record created and presented to all of the absent board members before action can be taken so basically the minutes have to be done before the next meeting and before you can take action keep in mind in the event that the minutes will take longer to create than it would be to just wait for that next meeting to take action you may want to consider just waiting until the next meeting usually this exception should only be used if the people coming to that meeting are unavailable at the next meeting would that would be my recommendation that if you do act quorum it's fine to cancel the meeting and have the next meeting be just where you where you would take action because if you hear the testimony  can't take action until the minutes are typed up and the whole the whole commission hears it and votes so that's an important to know without exception but yes  there at the meeting you don't have to wait for everything to be typed up you don't have to wait until the two hundred three days it takes to read through the whole material because we want to read your own time and this way we can watch it and it'll just take us a well you're talking about a couple of different things this i think requires the type of record it requires for this exception is i think a written record in written minutes but if you're talking about just getting a hold of the a cop who d v d i mean that's something that could happen whether or not whether or not that's going to satisfy the requirements of the of the sunshine law i don't think they will until the merits are done but in general if if that's available and members would be able to read that or listen to that before the next meeting or watch it i think that that's not generally ok  but i do think the and if they want to do that in advance of getting the minutes i think that's fine if it's a video that's maybe even better than the minutes so you can actually see what's going on as far as departmental staff i don't know if that's a burden on them to to get you that but i think for it for this record you need to have that in writing that so it's available for members of the public to see as well but i think that what you suggest a good idea if it is possible to get right well you're going to have people that testify here are that's why they use the microphone they're going to be put they're going to be put on the record and so there will be minutes made available and that's part of the record that has to be made available in those minutes to the other commissioners they can read the they can watch the d v d and see the testifiers as well before the next meeting but i think in order to keep track of the sunshine law and and keep track of for for purposes of contested cases we may need to verify with everyone you've read the whole record it's i think it's best practice to have those meeting minutes done as soon as possible so you can verify that a copy of the minutes was distributed to two members so they have the opportunity but you know if that's not possible i think the d v d is probably the next best alternative what we should do in those cases is verify with that member at the time they're going to vote on the item that they have read all of the minutes and or or have watched  the d v d and read the whole record and they understand what's happening otherwise they may not be able to vote we had that before and it's tough if you miss a meeting and there's a lengthy record that you haven't seen yet you do you are required as a member to read up on that  whole record before before voting so i don't know to what extent the d v d is going to be a total substitute for the minutes really think the minutes are going to be key so you can show when they've been distributed to the members  can look at that may be sufficient for the purposes of the contested case rules it's not going to be sufficient for sunshine law which is a separate issue you're still going to have to have minutes but if those minutes are prepared at a later date than then maybe that's ok if that's something you may want to discuss with gary as well since he's going to be your counsel going forward every day you know to look at something like that that may be an option good i know what's right but i don't know what's legal yeah you know the d v d would be great but i don't want to and i want to do that without talking to our litigators two that have dealt with this issue in their in cases in and have them you know have have them have an issue with that i mean to me that seems that seems fine but in general it's written minutes that the state law would require us to have and i think that's the best practice is to to have that have that available maybe it's that's a supplement to the d v d and if if you watch the d v d you can verify under oath that i watched the whole meeting i went back and watched the whole thing i saw everything it was actually better than the transcript because i was able to see the people's you know the facial expressions and you know some people like to have in person evaluation of that type of testimony so we can look at that as an alternative but i don't want to say right now that that's going to be adequate substitute for having meeting  minutes there's also permit interaction attendance at other meetings less than a quarter may attend informational meetings or presentations on matters relating to board business including a meeting of another board or the county council members neighbor to subpoena discussions no commitment relating to a vote on the matter may be made or sought and attending members must report their attendance and the matters presented and discussed that relate to board business if it's more than four the problem is that you could be considered having a meeting and for a meeting you may have to post your own agenda and allow your own section for public testimony so that's why you want to keep it less than a quorum if you're going to attend a council meeting to watch an item or something like that so i would keep that in mind one exception to the oh yeah y exception to the sunshine law normally you have to you have to post an agenda and all of your agenda items is there anything you're going to discuss needs to be on an agenda item and the agenda can't be changed after it's been posted less you have  two thirds vote of the i don't think this actually goes into it yet no not yet it's light and that's not on here but you can once your agenda is posted that has your items it really can't be changed unless you have a two thirds vote of the members to which the commission is entitled so you need to have a basically a two thirds vote to change the the agenda item you can't change the agenda if if there's  action would affect a significant number of people or would be important to a significant number of people so generally you can't have that type of vote to change and change your agenda i would recommend against changing your agenda after it's posted because there's a there's exceptions that make that very difficult and the best way to deal with items that aren't on the agenda that you want to discuss is to ask that they be placed on the next agenda and that can happen  but back in executive meetings executive meetings are a an exception to the sunshine law and allows the commission to have a meeting that is closed to the public and the reasons that can have those meetings are specified in h normally if two to go into an executive meeting you either have to have it on your agenda sometimes it's generally placed on the agenda that will say that you may need to go to executive session otherwise generally you needed two third affirmative vote of the members present two to go into executive session the purpose of the meeting has to be announced in open session and one example of a  purpose and probably the most common purpose is to consult with the board's attorney on questions and issues pertaining to the board's powers duties privileges immunities and liabilities that's essentially to consult with your attorney who would be me or whoever is your assigned deputy corporation coun ask legal questions dealing with the item or receive legal advice from that council again that's a meeting that is closed to the public minutes are still taken of that meeting in case there's a challenge later on that says that that item should have been discussed in executive session but that's probably the most common example of when an executive meeting is called for occasionally i will recommend an executive session discussion if i believe there's legal advice that is pertinent for that  item and then if there's sunshine law violations there's a variety of things that could can happen a decision may be voided a court can basically undo your decision an injunction can be issued that would basically prevent a order of the commission from happening commissioners may be found guilty of a misdemeanor if they are involved in an intentional sunshine law violation and commissioners may be removed from their position on the commission so that's it for the  exceptions i wouldn't recommend individual slate visits on applications the potential issue is that you may have information that the rest of the bodies not doesn't have if you happen to know the area that's different but if you d liberately investigate a a a site that you know is upcoming i recommend against that i would advise that you suggest that there be a site visit and that's been done before the commission puts it on an agenda gives a location for where the site visit is that my county council has done this before and the commission's done this before so i'd recommend you do it that way and allow for public testimony and the public to attend t do that but you're not going to get disqualified because you happen to know the area if you go to that area and investigate right before the the item then potentially the applicant could say i and less all the other members had that same experience i want that person recused from voting because they have different information than the rest so that would be the concern the other questions on sunshine law again you're not expected to memorize all of this it's not really possible in one meeting but that's why we're here the main thing is don't discuss board business outside of your meetings i think that's that if you take one thing away from this that's the basically the chairperson controls the flow in order of meeting the chairs required to know the rules robert's rules of order and the law that's one of the reasons why the corporation council sits next to the chair to help the chair out with that to speak debate and this has been done in the meeting members should the chair in obtain the chairs permission to speak or debate or to ask questions that's generally something you do the fall of a motion a motion first of all actions of the of the commission have to be taken by motion a motion must be made and seconded prior to the motion being received and considered by the board and in your rules silence or refusal to vote is considered an affirmative vote unless the member is disqualified based on the conflict of interest rules that's important there's no such thing as an extension under your rules the member unless they are disqualified from voting for a legal reason is required to vote yea or nay on an item that's in your rules i think that's their basic leader to ensure that you have action whether it's an approval or denial within a certain amount of time because there's a lot of permits that the commission has that if it does not take action in a certain amount of time they're considered automatically approved so that rule is there to to move along that flow friendly amendment once the motions been made it is no longer the property of the mover but of the commission and the amendment friendly or otherwise must be adopted by the full body by vote or unanimous consent once adopted or defeated return to the main motion to discuss and vote that's the more organized way of going about things if you have a motion and there's an amendment whether it's to add a condition or some other changed i f it needs to be done by amendment the amendment may be granted by unanimous consent so if you say something like our if there's no objections i'm going to add this and everyone says no objections then that's one potential way to  take action it's called action by unanimous consent but if one person says i object to that then you generally need to go and have a vote commissioner's roles and duties we strongly urge you to read your materials before you get to the meeting we know it's not always possible but that really benefits everybody understand your rules and the law you're applying to each application if you have questions that's why i'm there and the planners there don't hesitate to ask questions or staff and be respectful of other commissioners in the public kind of goes without saying you're going to have a criteria under which to review different permits it can change from permit to permit and so it's important to read your staff report and do not ever feel bad about asking questions what are we the baseline starting questions i think are what are we approving and what action are you requesting from the commission they can be very they could be asking for your recommendations they could be asking for your approval they could be asking for you know an amendment of an existing permit understanding that do you not feel ever feel ashamed if you have to ask that because that's that's a critical thing to know and it's easy to get confused with the number of different applications in different approvals that you have to give throughout the throughout your your tenure things are member you do have to remain fair and impartial don't form a conclusion until you've heard and evaluate all the evidence applying a lot to the facts of the application and your decision has to be based on the evidence in the record and the law you are applying not your feelings about the applicant or the application and obviously avoid statements that may be seen as an attack on someone's race sex gender or religion that's it for iraq it's rules of order again not going to memorize everything but are there any questions about that in the process in general no if not i will go on to ethics the county code of ethics is an article ten of the charter it does apply to you as planning commissioners it prohibits accepting gifts or money and engaging in any business transaction or activity or have a financial interest that is incompatible with the proper discharge of your duties or that may impair a commissioner's independence of judgment in the performance of official duty and also prohibits failing to disclose a financial interest or vote on a matter of fact and by such interest mallya planning commission rule basically requires that if there's a conflict there needs to be a full disclosure and the member may need to recuse themselves from voting or from discussion on the item again they have to disclose the conflict an example would be an employer employee relationship that's a financial interest that must be disclosed but a board of ethics opinion two thousand and four an employer employee relationship doesn't automatically disqualify a commission from voting however the commission needs to decide whether to proceed or not may have seen from voting or can request a deferral and seek an advisory opinion specifically on the specific issue from the board of ethics sorry about the two specifics there now basically this can be done prior to a meeting as well you don't have to wait till the meeting you know if you see the issue coming up in advance it's a good idea to raise it with myself or them or the planning director and if there's still an issue remaining the issue still outstanding to request an advisory opinion from the board  ethics if a commissioner obtains an advisory opinion from the board of ethics and acts accordingly or accident accordance with the opinions of the board the commissioner shall not be held liable for violating the county charter decision and challenge penalties a complaint may be followed by someone who believes  decision by a commissioner made was affected by the commissioner's financial relationship and for a failure to follow the trotters ethics requirements commissioners may be fined or removed from the commission are potential actions that the board of ethics can take  with ethics it's generally difficult to go over all the potential facts that can arise for a specific case you can contact myself and the board of that fix it can consider specific cases an issue opinions and has issued opinions and the board's required issued opinion within forty five days of a request so that's that's a tool that if a member has a question they can go to the board in the board's required to issue opinions on those those cases right or other questions on the site i'm ok moving on to contested cases contested cases are of a certain type of application that you may see the actual definition of them means  proceeding in which the legal rights duties or privileges of specific parties are required by law to be determined after an opportunity for agency hearing examples could be a public hearing for an s m a major permit or a state special permit there are certain requirements for a contested case these these include notice to the parties submission of evidence has to be allowed by either party cross examination and rebuttal evidence needs to be allowed by a party to the contest case the party initiating the proceeding has the burden of proof including the burden of producing evidence as well as the burden of persuasion and the degree or quantum of proof shall be a preponderance of the evidence that's a more likely than not standard basically someone seeking a permit  is required to meet their burden of proof that they're entitled to that permit if they meet the criteria and they need to show that by a by showing that it's more likely than not that they need the requirements of that permit so that that's  basically what you have to work with for four contested cases the commission is required to consider the whole record or such portions or others may be cited by the parties every decision in order adverse to a party must be in writing in a company by findings law this is a bit back to what gina talked about for b and b s and short term rental homes and you need to go over the facts that you're actually relying on to make your decision if they are either facts that are outside of the record meaning somebody or something that you kind of make up without a reference to which on the record which includes the staff report public testimony or or answers to questions you received and you can't rely on that evidence  so that's something that when you're creating that record it's important to be able to relate back to that and that evidence has to relate to the legal standard for the permit as well so that's a importance why it's really important when you go into the meeting to know that standard ahead of time  now the judicial review is very important the planning commission after its decision can be sued and taken to court and the court has several options after reviewing your decision it can affirm decision it can remain the case with instructions for further proceedings or it could reverse or modify the decision in order that if the stench or rights of the petitioners of the applicants basically or or someone opposing the applicants had been  prejudiced because of the administration because of i'm sorry basically and this is going to be a long list here your decision may be reversed under a variety of criteria and they can reverse and modify your decision based on any of the following criteria so if your decision basically fails to meet these standards both so basically either it was illegal arbitrary there was a procedural problem or any of these other reasons a court can actually reverse your decision generally the court's going to not be looking if you've got a factual basis for your decision after you've reviewed the application and and basically the court's job is not to substitute its judgment for your own it's not to say if i were a commissioner i would have made a different decision that's a look for a legal errors to see that you either misapplied the law or or it's going to look at basically errors in procedure and things like that if you didn't follow the law but in general the law recognizes that most of the permits you grant are discretionary permits and different commissioners can weigh different facts in a different manner and so you made you made make a decision that a commission ten years ago may have made a different decision based on the exact same facts and the court supposed to realize that so that's really important to have a record upon which to base your decision if there's no record and no evidence to back up your decision than the court may reverse for lack of evidence but if you have the evidence on the record showing that either the criteria was met or reasons why the criteria were not met it's important to have that in the record that's going to be put in your decision in order and it will be very difficult for a court to reverse that if they've got that record in front of them so i would so please keep that in mind while you're actually doing the item so that's it for contested case hearings i'd like to move into case law review or other questions on that again you're going to have your criteria set forth before you before each application so i would keep that in mind i just wanted to comment because i know th these different permits all have different criteria for plenty of commissions special use permit is different then a county specially used permit is different then a conditional permit is different than a short term rental home for a minute and it's going to be on really on those basis that you approve  gosh you know you can't use the land use commission he doesn't have a farm plan for a short term rental home when the guy is the rural districts of the residential district we think you should be farming you can't you can't mix those things you're going to do you're going to have contentious things come in front of you and if you want your decisions to be upheld you put those things on the record the actual reasons why you in the end and that's a good point will and the case law review that's going to be more relevant as well case law goes into the fact that you need to look at the criteria for the permit to determine things like what conditions that you can place on the permit and under which circumstances you can deny a permit for example traffic issues may be relevant and something you can look at in the case of a change in zoning or a special permit but they may not be relevant for n s m a permit you may not be able to look at if they're going to be different there's going to be some things that overlap but they're going to be different in the change in zoning criteria is going to generally be broader as far as the things that it looks at the s m a law for example is dealing primarily with protecting coastal ecosystems that's why in the s m a that's only in an area drawn around the shoreline around the island so generally that's going to deal with coastal impacts because if you're outside of the u s and may you don't have to go through that same review and therefore and presumably that's because the line is drawn so that you do not believe that property will have as much of an impact on that the shoreline as one closer to the shoreline may may have well doesn't mean you can't look at shoreline impacts if you need some other type of permit but i think that's relevant to  apply that law to to the application there's also constitutional law that the government cannot take private property without just compensation it also basically boils down to the government can't force some people basically private people who are building something alone to bear public burdens which in all fairness and justice should be borne by the public as a whole so taking can be via permits with excessive conditions on now there there must be in this is established by a us supreme court law there must be a nexus or connection between the anticipated effects of the land use and the exaction that you are getting from the the landowner  the planning commission has to identify the anticipated effects of the project and show how the permit condition is related to those effects are so basically if the you have to show that the condition that you're placing deals with an impact that that project is actually having so the project if the project is going if you're going to deal with shoreline access you're going to need to show that this project is in some way cutting off shoreline access or reducing shoreline access if you're looking at a condition that requires the applicant to do something to mitigate the impact that would have justified the denial so if you would say oh this this projects going to cut off too much shoreline access normally i would not i it it's possible to say well if you carve out easement here for the public or provide beach access in a certain way then your project does meet the criteria for the permit that's something the supreme court does allow but again the first step is to determine that you're mitigating impact the project going to have the other issue with that is rough proportionality this is basis basically means that you have your nexus and also that the condition mitigates that impact in rough proportionality too with the impact is so if your traffic impact is there's going to be ten extra cars you can't make the developer build a new four lane highway you know for for miles and miles that would be it does relate to the impact of the project but it's not in proportion to the impact the project is having would be one example so essential nexus and rough proportionality those are the two two two things to think about when you're looking at any conditions of of either zoning estimate permits or anything else now that that's a another basically in other statement that you can't require someone to give up a constitutional right  where the benefit has little or no relationship to the property an example is to go over one example you frequently be dealing with special management area permits that's covered in two a five a that again is a coastal zone protection law and there are several criteria by which that law says that law says it has several goals objectives and policies and basically give got i commission as to what you would be looking at when deciding to grant or deny those permits and they list things that are considered goals objectives and policies and they include things like recreational resources public access historic resources coastal ecosystems economic useful uses coastal hazards etc managing development and there's a list in nature as to a five a dash two of those uses now the reason that's significant is because hawaii courts have looked at cases where a commission at least in one case were a commission tonight in s m a permit because they said in that case i don't know if there's a specific one here and that case they basically said well we think the project going to cost too much traffic so we're going to deny an estimate permit for this and the court reversed and said you didn't traffic is not listed as one of the criteria in two a five day you need to tie in your denial based on traffic to the goals objectives and policies and to a five a day and you didn't do that so they sent it back to the commission to to look at that and so what they basically say is that if you look at it in a special management area permit you look at the effect and if there's going to be a substantial adverse effect in accordance with the statute of the commission still needs to consider whether that effect can be minimized and when minimised is clearly outweighed by public health safety or a compelling public interest and the commission impose reasonable conditions to achieve this minimisation so if you look at the project and you believe it does not meet the criteria for an estimate permit the courts say you still have to consider how you could minimize those impacts by appropriate conditions or or things like that even if when they are minimised it still does not meet the criteria for a permit and and that's and that lack of a criteria are that failure to meet the criteria is established in the record then a permit can be denied and so that's what the court held the court held in that case that there weren't sufficient findings for the commission to deny an s m a permit in that case which is why it's important to put that on the record to make clear are your reasons for approval or denial of a permit it can be challenging for denial if the recommendation from the department is approval because you've got a staff report setting forth reasons for approval so for a denial would generally has to be done is reasons pointed out in the record for denial and then a the staff report can be essentially rewritten at your at your request to become a decision in order denying the permit that's essentially what has to happen in that case and our office works with the planning department to to come up with that document and that it at a meeting after you voted to deny that document can be adopted and once that's adopted your decision can be appealed to the court which has happened in those cases but in general please keep in mind your reasons for denying a permit and keep them on the record because if they're there then there's a very good chance if they're there and they meet the criteria if they show that if they go to the criteria that the laws requiring you to look at there's a very and you'll most likely not be reversed by a court now again this is when you can deny an estimate permit and again make that's just what i just s essentially again if you're applying conditions of the surprise not only to applies not only to denial but putting conditions on the permits other conditions have to be related to the law being applied and must be proportional to the project impacts in a mitigate those impacts again these are examples of some a conditions that are clearly within the scope of the of the coastal zone management act now in addition to all of this the h supreme court has also found that the planning commission has an affirmative duty to protect cultural resources in granting permits us not just the planning commission it's the state land use commission and other bodies as well now the commission is all going to project of the reasonable exercise of customarily in traditionally exercise rights of hawaiians to the extent feasible we want to question to you well yes you can go to questions but basically what that means is that if there are gathering rights established parcel that you're looking at and that your permit may affect those gathering rights and you know about them then you're required before granting the permit to provide for the for the maintenance of those rights generally that does mean  pre contact gathering rights of native hawaiians but if you have facts on the record to show that that may exist further inquiry will be important and the commission's actually required to provide conditions for for ensuring that those rights are not affected so there are questions on on any of these issues for now ok i will i'm finished and we'll go on with the with the next  but i was sitting over there kind of doing the math in my head and that's a very high likelihood that you will see me again for another training right before you get the west my committee planned so this is sort the backdrop ok and yeah and then there were  it put the most important stuff last ok so what i'd like to talk to and i will broadly go through this is the community plan and the reason why it's relevant there's two reasons one is you are about to go through the community planning process because the next six will all be coming here and also when you look at community plans regardless of how updated or outdated they are how do you use these things when you're looking at permits i mean what how are you supposed to be using them and have you ever seen them so one thing i do want to do because you don't get to see our faces that often but this is your long range planning division  the long range planning division basically oversees the creation of the general plan which thankfully was adopted before i got here in two thousand and twelve and then we also oversee all the community plants and it's divided into i shouldn't say divided as we work very closely together but there is a geospatial g i s section and then there's the planning section where we typically do the community plans and all kinds of long range projects  some of the things that we do was for example one of my staff members has been tasked one hundred percent of the time by the mayor to work on the while loop redevelopment project and he's working very closely with them are a i don't know if you know david but he's doing great work on that  then on a lease who is incredibly talented is our cultural resources commission planner so she works with the c r c on his to typically historic district and cultural related issues so right now in terms of how this relates to you there are three plants kind of up the three balls in the air right now are the one community plan which right now is at the maui county council for a hopefully short stint in the planning committee before it goes back to the maui county council which will hopefully then be adopted we just finished the molokai community plan very excited about the fact we stuck to one hundred eighty days in the timeline that was transmitted last week to the mare who transmitted to the maui county council right now we have started the work on the west mara community plants that would be the community plan that would be coming before you all but you probably and i'm sure you guys know or will know title nineteen forward and backward however this is something you probably haven't seen in a while if ever but you will become familiar with it and that's the maui county code two point eight zero p and the reason why that's relevant is that dictates the process  dictates the content of the general plan as well as the community plans so you'll be hearing a lot about that a lot of times people refer to the general plan which is kind of an awkward term for maui county what's happen you'll be getting touch upon is very briefly are much more directed then are easier to work with documents that are really focused on land use growth and development again the county wide if you get a my background which shows better the role of the marijuana plant is more again more of a regional document looking at island wide is shoes looking at the budget i mean kathleen can talk more about that too but i think what we're trying to gear this to your guys in your attention what's relevant specific to you that will come before you is obviously the community plan and we will be working on the west now a plan just going into this a lot of people ask why do these plans look different they will look vastly different so one of the reasons why they look different is again two point eight zero b this was written as billy before back in two thousand and four it dictates and what was put into billing for two point eight  very specific like sixteen requirements in terms of substance and content everything from community design to multi modal transportation to socio economic environmental and social impacts of proposed development so for example the maui island plan for west maui identified urban growth boundaries for nine projected growth areas so the west maui community plan would take a look at as appropriate those nine projected growth areas and we have two  point eight zero b talk about some of the impacts relative to socio social economic and environmental impacts again environmental that means me mean things such as sea level rise runoff things like that and how those projected growth areas may impact the community so that's trying to link together these documents these are this is just a list that gives you an idea of just some of the things that we have to address within these community plans why they will look so vastly different from the existing the state and the feds also mandate that we have to put things in these community plans i'm sure you've heard about when some estimate applications and shoreline erosion applications there are very critical aspects leading to climate change and sea level rise so those must be active the three per the state addressed in our community plans also the whole issue of sustainability needs to be in our community plans as well and some of the things that have come around in the last twelve to twenty years per whenever the last community existing com updated or really pressing issues related to economic development hazards governance education health and social services so those things are also requirements that must be in the community wants this is pretty important and we deal more with the sea pack on this but lately it's yeah when it's becoming a certain mining commission's it's important to understand what a community plan is not it is not the bible document for the com community there are all kinds of documents that go into there is a hazard mitigation plan that was just approved last year it is about that that there is an ocean resources management plan i mean i could go on there's a cultural resources management and those can be referenced but the community plan should not include append to see these are all these various documents and plans that have already been done it's a self contained plan vetted by the community the planning department public testimony and ultimately you guys it should be been workable document cannot emphasize that enough so one thing will want to touch on about show you graph about the process but just know that before a draft is even compiled staff we basically go through and there it is but before we even get to that first step that you'll find out about we exhaustive work is done including updating technical reports socioeconomic land use forecast updates we meet with every single one of the county agencies and that we literally one on one meet with them talk about their c a p talk about infrastructure public facilities water issues so these are the types of things that we do we go on i mean i know molokai we're going to fifty four interviews in the community some of the community stakeholders we're going to be doing civic group presentations big outreach unless we'd like to come and do presentations to you guys but every month or two just a quick update if time permits but just to keep you linked into the whole process so a lot of people ask what is the timing what is the process because it's a very strict timeline her to find an o b so once the draft has been completed so you see the bottom left hand corner corner draft one see pack is appointed it's appointed by the council and the mare once the first c pack meeting starts the clock starts ticking they have one hundred eighty days six months to vet through the draft i will tell you that when we met we had twenty five meetings and over one hundred twenty seven hours is a very intensive very intensive process and i'm underscoring now so that i'm trying to relay as i did with the more planning commission that by the time you get the draft that draft has been very very very very very well vet throughout the community so there's a lot of question about what is the role of them ok or a planning commission versus a c pac in a community the sea pack really does a lot of the heavy lifting we have workshops we have education panels we have directors come in educated that is all happening at that level so that's the see pat process once they complete their draft we go through this in every single every single meeting has public testimony much like your meetings typically throughout the entire meeting we then have time to pull together clean up the draft including all the changes and we'll have all those documented then what you will be receiving is a clean version and what that clean version represents is the community version of the community plan it's their version that's been vetted it's a nice clean version you all don't have six months and again some planning commissions had a during their planning meetings some of them had a whole completely different track so one meeting in the month would be the typical planning commission meeting the other meeting would be get dedicated towards a community plan that's up to you all to decide when we get to that point time how you want to handle that but you have six months six months to review the draft after you guys put in your changes are recommendations and again it's just a review looking at findings again it's been heavily vetted very heavily vetted no need to rewrite or wordsmith then what happens is it sounds a little better there anyway so then what happens is this this is become a big bone of contention what we will be transmitting to council will be a draft that will have the planning commission changes on it so that's what they're receiving so what that it essentially includes is the c pack version with your changes as appropriate on top of that so they're seeing and then they will also be receiving the minutes as well as the track change so they will have all that if they want to see how that draft evolves throughout the process they will have all the background information we don't really i mean i've spoken about a lot of this with you guys so the community process this is really important it is a consensus based process meaning we go through we have a draft and we're trying to come to agreement as much as possible as you guys know better than anybody much more so than the engineers are dealt with and water fine is messy it's very very messy if you walk away from a permit or a plan and not everybody is happy you did a great job if you walk away and half the people are thrilled to have foreign money and not so much so it's a very messy process and when you think about a community like west now a very diverse community with very pressing issues so the point as we go through this is try to reach consensus as much as possible as we go through the process do not focus on what is this draft who made th human i beg of you he's let's look at the bigger issues that's where your role is so critical because you see every day where the rubber hits the road you know with your permits and everything and now you're doing a show and erosion and all kinds of things so it's these bigger issues that are really the other thing too that you guys know better than anybody is to try to ensure and we will of course but the other thing that's very important is to make sure that what's in here does not conflict with ongoing you know regulations county the charter and fed you know federal works and so forth so as i see it because this is but now it's now up to planning commissions when i've done this what do we do what do we do i think the thing the best role for the planning commission is in the context of you guys reviewing your permits and all these things that you've been doing is to look at the community plan probably the most important thing and you will get more than we can advance is to read the community please read the draft and please read it very very important and i know it some planning commissioners did as they put tags where they had questions i mean typically you know certain issues how they could see how things would intersect with what they dealt with every day but in the context of a planning commission or you know that that is what i asked and it you don't have to go through and change every single page but it's having that understanding of how you would use this community plan as you're reviewing your permits so the heavy lift is really at the sea pack level and i will tell you that some of the sea power planning commission members you know i guess two or less what it ten some of these meetings to kind of keep in touch and see what was going on we urge the sea pack members to attend the planning commission meetings and that has been very useful in case a plan a commissioner said well how did you come up with this policy or how did you come up with this action item and they would come up and they would explain so that's useful to so that is all i have and it doesn't want to go yeah we're done so that's again you're going to see me again in a year anyway wayne and wayne thank you so much he gave us a very very very detailed interview that was really helpful with staff so thank you the community process once the plan is  community now that's a that's a fantastic question i don't know if you want to try to address the role where zoning comes in after the c p land use designation ideally we would come back  among a whole bunch of things that designate certain land use say single family it'll say commercial hotel whatever ideally you come up with th then hundreds and hundreds of hours it's not just with those here a lot of people testify that this is the voice of the community well yes it is but it's also the voice of the planning and it's also the instead of having property owners come in one at a time in talking to other planners around the country and their general plans in trying to figure out how your process defriended all of that one of the questions i always house is ok you comprehensively zone you general so i think that is just an extremely common practice it still doesn't alleviate that doesn't alleviate environmental review and so many other things have to go on i you know one of these i want to do is to just give you guys i don't know if it would allow in your agendas but steve in a five minute update you know in terms of here's whereat depend we do want to do that with council so that they're not just getting this thing is that they're realizing out the plan of volves in the issues and how they're being dealt with but you will know like you will know we had to see pack you guys will know and then we have to go by the way that's a good question is once we're done with c pac we have literally one month or less to prepare that document to then we have to hand it off to you guys within a certain amount of time and you guys do have one hundred eighty days to review it so once that clock starts then that's that's how that so the things to think about is how do you want to do it you want a whole separate meeting is your agendas or are mind blowing to begin with i don't know how you could possibly because typically the meetings we have with the planning commissions to review the community plans are three to seven hours long i mean just to let you know and a lot of that's because you've got the room packed with and i'm sure it will be with west maui with public testimony as she was planning director at one time deputy planning corrector at another point she did quite a stand in the long range vision and in the cur division just charged with taking the action and actually doing some clean as good afternoon chair good afternoon commissioners yes my name is kathleen rush and i am the administrative planning officer for the plan implementation division in our division that i was just recently created in two thousand and fourteen so it's very small there's me i we mentioned you know the role of the plan implementation division is to really dedicated to implementing actions that are in our multitude of plans so that the county wide policy  plan plan all the general plans and any other plan you can think of that's under our purview so it's quite a lot of different plans that we're responsible for we are responsible for monitoring implementation and tracking of the auction items we do special projects there might be new legislation that's come out of what's in the auction actions we have a mentioned a g i specialist who are analysts who is dedicated to us but right now we do share with long range to help out with the any kind of projects that long range has we could come before you for zoning ordinances and regulation changes we also courteney with other agencies and the c h p consistencies the capital improvement projects so we review every year the budget that's proposed for capital improvements and we let the budget office know where in the policies and action items and all these various plans these kind of projects are supported so that's helpful  we also are responsible for things that are noted with in each plan so in the maui island plan there is a specific monitoring and evaluation report required so we're starting to work on not we're also required under the the director is required to do the implementation status report and that's located in the charter so we just completed not for the first time ever so we we we transmitted that to counsel i have props to so these were the reports that were done and i'll get into the specifics of the reports but one was for the county wide policy plan and money island plan and one was for all the communities plan action and these are available for your purview on the planning department so i think what's important for the planning commissioner you is planning commissioners to understand is what's your role how am i involved or how is paid involved with you and how can you help us and the main thing is pound read the plans you know you're you make a lot of important decisions and if you know what the community wanted and what direction they want to take their community  that's very helpful for you folks we will come before you for special meetings and hearings on projects to implement the general plan if there were ordinance changes in title nineteen that could  before you that would be this you know that the legislation that could be proposed could be from will from the director or it could be something like you just saw earlier that could be brought down from the county council so there's different ways of doing it and it's not just for the commissioners but for money residents in general to be familiar with these plans this next slide is just showing an overall loop that for all the one big happy family and planning if you will laughs but the goal is to have everybody working together a lot of times and it's not just in planning we all work in our little silos but what each division does really has an impact on every other division and especially when you're the director deputy you got a lot more clearly planned implementation i'm seeing it a lot because we're the ones that have to change and implement these things and it could affect current it could affect zoning it could affect long range and little do they know that all of what they do affects one another so i just want to give you a brief example of how goal objective policy action and program ken can come back to you and how it can be implemented so  example for you is in the health care sub aliment of the maui island plan there's an objective diary an expansion of long term care facilities and long term care alternatives to meet the needs of our aging so actions are the county's or any other agency may not be a county that's responsible for some of these things it's hard to do i support these policies and doing of the actionist son essentially implement oh so then you have to come up with a program so a program of the fine up there is a cordon series of policies and and secure area out the plan so you have to identify who's responsible for that and then link it to the budget which is what pat had mentioned earlier so in this particular example it could be a county or state an issue to for example the county calls for a particular area to allow for a long term care facility that would be one way for us to implement that action or it could be amend a building code to allow for certain types of changes within the building code to allow and adapt you know particular home or what ever you might have for that long term care resident or it could be to help fund a private entity like say how the model to go build a long term care facility so there's a number of different ways an actual action could get implemented and it may not always fall just on planning it could fall on all kinds of other agencies which is why i was critical for us to have that relationship with all these other a one thing that i want to stress is that it's important to remember that we don't have jurisdiction over the state budgets so a lot of times during the community plan or any kind of general plan update you might hear or want to go down that road about things like education and the state highway things that are operated at a state level and it's ok to put those in the in the the county to support these kinds of things but we don't have the actual authority to go in and dictate what state agencies do so we like to make those aspirational statement so as i mentioned a little earlier what i want to focus on is the middle part there where i actually tallied up all the actions are in these plans so you have seventy three options in the county right policy plan three hundred twenty three auctions in the maui i don't plan and six hundred nineteen options and all the community plans combined so that gives us a grand total of one thousand and fifteen actions that we're responsible for and i say we generally planning is responsible for about two hundred some of them and then all the other agencies are responsible for what you know there that falls under them but not just i think that's a porton for everybody to realize that as much as we have this division and we are going to focus on implementing things there's a thousand and fifteen action items  you know less i worked on two hundred ten i don't think i'm going to get them all done but i'll try and last but not least what i wanted to do what i wanted to to also emphasize is that these plans are aspirational they set a direction for you know how you want the community to look like what you want to focus on but there's also flexibility because these plans last twenty years so what might be a critical issue today may change five years from now and i'll give you one prime goal in the mommy island plan and we have to do this monitoring report and there's nothing in there about homelessness nothing was a big issue eight years ago not like it is today yeah so not so kind of thing that we have to realize these plans are fluid they're adoptable we change focuses can change but at the end isn't day they all provide a vehicle of support for programs when you need that support or for legislative changes or for finding interesting the enough i'm looking at commissioner hudson one of the action items for the maui i don't plan talked about the line a police station because that was a few years ago that was going to be the next one because i worked with commissioner hudson on and when i was talking with cheeks the chief of police not too long ago i found out that the focus has shifted to  front of the lobby at the mckenna beach golf resort hotel and that would allow the bus to come by because all up and take is out  you think it's about sorry i think it's about fifty seven seats where is simming that you know there may be a few members of the public that may want to attend director is when you do the exemptions i know you go off of her release as i understand it it's under five hundred thousand dollars to go to a minor and and we need to submit to tell you you know what the dollar amount of use what triggers you to verify that with  work it is not just a matter of whether something is the the value or not that's not the trigger for an estimate major what we look at is a section in state law that says this is a development or this is not and we look at the categories we look at are there going to be significant impacts of something and we make the determination  then ok is it under five hundred thousand or is it over ninety eight percent of the time it's really clear hopefully may twenty fourth is the next regular commission meeting and you have two items on new business you have review of environmental susman requesting environmental assessment be another requesting another just requesting comments on a draft environmental impact statement for a rather large project in