Council to change law to allow judge’s rezoning

The County Council will fast-track changes to its concurrency laws to accommodate a Hilo District Court judge’s application to subdivide his property.

Judge Harry Freitas and his wife, Sandra, want to rezone their 50-acre Mountain View property from agriculture 20 acres to agriculture 5 acres. The Windward Planning Commission had recommended against the rezoning.

The Planning Department said the application doesn’t meet minimum water concurrency requirements and runs afoul of Puna Community Development Plan policies discouraging further subdivisions of agriculture land. It’s also against county General Plan policies requiring adequate water utilities and it has substandard road conditions, county planners said.

The council Planning Committee on Wednesday split 4-4 along east-west lines, forwarding the Freitas application to the council with a negative recommendation. Kohala Councilwoman Margaret Wille was absent.

West Hawaii council members Dru Kanuha, Karen Eoff and Maile David voted no, along with Hamakua Councilwoman Valerie Poindexter. Hilo Councilmen Dennis “Fresh” Onishi and Aaron Chung, along with Puna Councilmen Greggor Ilagan and Danny Paleka, voted yes.

Onishi is in the meantime drafting an amendment to the county’s 2011 concurrency law to change water requirements for areas that meet certain rainfall levels, such as East Hawaii. Planning Committee Chairman Ilagan said he’d waive the bill through his committee to move it along more quickly.

Hilo attorney Ted Hong, representing Freitas, urged the council to approve his client’s application first, saying the concurrency law is flawed and approving the rezoning would send a clear message that changes are needed. The council is the policymaking body, he said.

“You can approve the application,” Hong said. “What you’re saying, is you see the need to change the concurrency law. … Pass this. Use it as an impetus to spark a change.”

Some council members agreed, saying the concurrency law, which requires roads and water infrastructure be in place before increasing population density through rezoning, was geared primarily toward West Hawaii. An unintended consequence, said Chung, is that water hookups are required in areas receiving 180 inches of rain annually, where water catchment is sufficient.

“The local landowners are the ones who are suffering,” Onishi said. “The law’s changed and now you’re locked. You can’t do anything, but other guys could, and to me that’s unfair.”

Others pointed to the language of the concurrency law, which states a rezoning “shall not be granted” if water hookups or private water system equivalent aren’t met.

“We’re here as a policymaking body, but we’re also up here to uphold the law,” Eoff said.

“I see this as setting a precedent that it’s OK to disregard the letter of the law because we’re going to fix it later,” added David.

Planning Director Duane Kanuha said there are a number of neighbors in similar situations, and approving just one could lead to a snowball effect.

“If you’re going to give them then you’ll give me,” Kanuha characterized the likely response. “And then you just extend the situation of inadequate infrastructure.”

Hong said Freitas would be forced to sell the property that he purchased in 2000 if he couldn’t get the rezoning. But he said later his client could wait three or four months for the county to change the concurrency law before approving the rezoning.

Freitas, who formerly worked at the Office of Corporation Counsel, was appointed to the judgeship in 2007.

Paleka said after the meeting that the fact that Freitas is a circuit judge had no bearing on his vote. As a “local boy,” he feels for the families who want to subdivide the family farm to give property to their children, he said.

“I know there are other individuals who want to pass their property on to their kids,” Paleka said. “It’s a tough one. We have to look at this one very carefully.”