Planning Commission to take up CDP amendments Thursday

KAILUA-KONA — The Leeward Planning Commission this week is expected to take up for consideration a batch of amendments proposed for the Kona Community Development Plan.

The amendments, outlined in a 100-page report from the Planning Department, are intended to resolve conflicts between the development plan, or CDP, and county Planning Code, so the two can be used together and much-needed projects in the community can move forward.

The amendments follow a 2017 decision by the Hawaii Intermediate Court of Appeals that upheld the CDP as law.

While the county’s General Plan acts as the blueprint for long-term development on the island, the community development plans translate how those broader goals and policies are implemented into the island’s various regions.

At times, those two rule books conflicted with one another, leaving projects stalled in the confusion.

The Kona CDP covers both North and South Kona, and was approved by the Hawaii County Council in September 2008 after more than two and a half years of work.

The county in the past hadn’t interpreted the language in the CDP as mandatory, but in Missler v. County of Hawaii, the Intermediate Court of Appeals upheld a circuit court ruling that the Kona CDP has a “detailed scheme” for setting the General Plan into action, and said the planning director is responsible for enforcing all ordinances, rules and laws that relate to planning and land use in the county.

That includes both the General Plan and Kona CDP.

Kona CDP action committee chairman Charlie Young said the use of “shall” in many places created a dilemma for those tasked with following the CDP’s directives, such as in cases where they required funding that wasn’t available.

“It’s because ‘shall’ carries the force of law,” he said. “It does not give you any wiggle room or discretion, and I think in some cases that actually led to non-decisions — people not making decisions — because there’s a ‘shall’ in front of it.”

Ken Melrose, former chairman of the Kona Community Development Plan action committee, said since 2008, the CDP hasn’t been able to be implemented because of the conflicts with the Planning Code, which he said is evidenced by the lack of new housing that’s been created since then.

“And this is trying to eliminate some of the impediments, so that the CDP can become more functional,” he said.

The goal of the amendment package, he added, is to let the CDP and Planning Code work better together.

“I am in whole-hearted support of this amendment package,” he said.

The vast majority of the amendments outlined in the package are to the CDP’s Chapter 4, which outlines the plan’s goals, objectives, policies and actions. In the case of many of the proposed amendments, the focus is on providing more clarity and resolving any potential clash between the CDP and other laws.

That sort of situation can be especially problematic for projects involving state and federal funding, Young said, which often come with their own rules and could be put at risk if there’s a conflict with the language in the CDP.

One amendment looks to address that by adding language to clarify that if any policies in the CDP conflict with any existing county, state or federal laws or regulations, especially those related to the protection or preservation of cultural and natural resources, the existing state or county law prevails.

Likewise, many instances of the word “shall” or will” are changed to “should,” framing specific policies less as directives and more as recommendations or ideal outcomes.

One amendment, for example, would change a policy saying redevelopment of Kailua-Kona “shall include” a plan for a regional transportation service with its hub at either Kailua Village or Makaeo to say only that redevelopment “should include” such a plan.

Young said changing “shall” to “should” in some of these cases can ease some of the apparent conflicts.

“Because I think what the ‘shall’ did was maybe just freeze some people up and take all discretion away in those cases,” he said. “And the Planning Department has to have some flexibility.”

He added not all instances of “shall” are becoming “should” in the amendment package, as there were still some areas where binding language was considered necessary.

In other cases, the amendments are more substantial.

One amendment adds language saying developments along Ane Keohokalole Highway should design their roadways to accommodate bus stops and transit stops as well as set aside space for bus transit shelters as a condition of having a zoning change request approved. That amendment would ensure accommodations are made for public transportation for the final stretch of that road.

The amendment package also includes a change to the list of road improvement priorities.

While the Kahului-Keauhou Parkway tops the CDP’s list of prioritized road improvements, the amendment package proposes putting the widening of Kuakini Highway at the top.

Melrose said both of those projects have long been priorities for the CDP.

“The reality is the Kahului-Keauhou Parkway has encountered impediments to its realization thus far,” he said. “And some relief for traffic has to occur for northbound traffic.”

The Kona CDP action committee last month voted to accept the amendment package, and Young emphasized the action committee’s involvement is just one step in the process before the amendments are ultimately accepted by the County Council, and there will still be opportunities for public input.

The county’s planning director in the Planning Department report asked the Leeward Planning Commission to give the amendment package a thumbs-up. The commission is scheduled to take up the amendments at its meeting on Thursday at the West Hawaii Civic Center.

If commissioners make a recommendation in favor of the amendment package, it will then move to the County Council, which then must give its approval.