Planning Commissions to mull rule changes: Amendments to conform with state law, delegate authority to Planning Department in the works

HILO — Almost six years after one of the county planning commissions rejected rule changes governing special management areas, which center around shorelines, the Planning Department is trying again.

A joint meeting of the Leeward and Windward planning commissions is scheduled Monday to consider a package of amendments, some required by state law and others proposed as “housekeeping” measures by the Planning Department.

The public can comment at the 9:30 a.m. meeting, which will run concurrently at the West Hawaii Civic Center in Kailua-Kona and County Council chambers in Hilo.

At issue in late 2011 was a provision allowing the state Division of Boating and Ocean Recreation to work on small boat harbors without permits. The sticking point for then- Windward Planning Commission Chairman Zendo Kern, who went on to win election to the County Council, is a provision allowing DOBOR to “plan, design, construct, operate and maintain” any land and facilities under its jurisdiction without needing an SMA minor permit or an SMA use permit.

“It’s sort of like the baby went out with the bath water,” Deputy Planning Director Daryn Arai said Thursday of the entire amendment package failing because of the DOBOR issue.

Still, he said, the Planning Department has been following the state law.

“We’d rather lean on the law as it exists now versus a series of outdated rules,” Arai said. “You don’t want it to be part of a (legal) challenge.”

But 30-year planning attorney Roy Vitousek of Kailua-Kona thinks the rule changes go too far — and a group opposed to a development at Hakalau Point say parts of the changes are written to help a single developer.

DOBOR has not been seeking SMA permits since the law changed, said a spokeswoman.

“Although DOBOR is exempt from SMA permit requirements, it makes every effort to comply with the applicable county guidelines while minimizing impacts to the environment and protecting the natural, cultural and historic resources that may be affected,” spokeswoman Deborah Ward said in an email.

Small boat harbors were previously exempt when controlled by the state Department of Transportation. When the responsibility was moved to DOBOR within the state Department of Land and Natural Resources, the exemption was not transferred.

In a 13-page testimony written Monday, Vitousek takes issue with a number of the amendments. He also opposes an amendment delegating more power to the planning director.

SMA minor permits are issued administratively by the Planning Department, while SMA use permits are issued by the planning commissions and require public hearings.

“Before the Commission delegates further responsibility to the director/department, the commissioners should thoroughly and rigorously assess the extent to which the department has exercised the responsibilities previously delegated to it in an appropriate manner,” Vitousek said.

“Specifically, the Commission should hold public meetings for the purpose of receiving feedback from the public relative to how the director and department have performed their delegated responsibilities to this point,” he added. “This should be done before any further delegation is made.”

The delegation of authority, which is allowed under state law, Arai said, is necessary because having the commission approve every minor application would cause a bottleneck and slow the permitting process.

The package also includes a cap on how big a single-family residence in an SMA can be before an SMA permit is needed. It allows homes of less than 7,500 square feet to be constructed or reconstructed without an SMA permit.

Another provision raises the maximum value of construction and improvements that trigger a use permit from $125,000 to $500,000. The increase reflects the increased cost of construction materials and labor, planning officials said.

The state Legislature proposed the provisions to expedite and facilitate work on projects that have been stalled or may be stalled because of permitting delays.

Other amendments proposed by the Planning Department include retroactive approvals and determinations, adding a $50 filing fee for the SMA assessment application, increasing from 35 days to 60 days for the department to act on the assessment application and allowing the planning director to waive the submittal of a shoreline survey for a SMA use permit application when the parcel is a shoreline parcel but the development is at least 100 feet from the shoreline.

The only two other written public comments submitted by Thursday concerned a retroactive provision allowing the previous SMA minor permits that have been issued by the department based on the current state law to remain valid.

That worried community members involved in a dispute with the developer of Hakalau Point. They say the change is being made to benefit a single developer, Steve Shropshire.

Shropshire Group LLC wants to build a food manufacturing operation, distillery, brewery, tasting room and restaurant on the property.

The improvements are estimated at $384,489, leading planning director Michael Yee to rescind a previously issued minor SMA permit, on the basis that it was more than $125,000. Shropshire appealed, and the case is set to be heard Nov. 9 by the county Board of Appeals.

The retroactive clause would allow the minor permit to proceed, inasmuch as improvements are valued at less than $500,000.

“It is clear that the current proposed amendment to increase the valuation cap for minor permits from $125,000 to $500,000 directly arises from Mr. Yee’ s Aug. 29 decision to rescind the minor permit which had been issued to the Shropshire Group LLC on April 4, 2017 and Mr. Shropshire’s opposition to Mr. Yee’s decision to rescind his minor permit,” said Hakalau resident John Kaye.

Arai said it makes sense to take another look at permits that were applied for after the state law changed but before the county changed its rules to conform. Shropshire’s permit isn’t the only one in this situation, he said. He denied the rule changes are to accommodate any one developer, saying there could be hundreds in this situation.

Shropshire said he didn’t ask for the rule change.

“I think this was an oversight and they’re doing their best to get it fixed,” Shropshire said.