The Hawaii County Planning Department needs to modernize and do better for West Hawaii, giving developers and the public definite guidelines, emphasize proper authority in the County Council, increase the public confidence and respect for the land planning process, and level the playing field where it often appears that applicant-developers are favored over the public. Specific examples of recent applications to then Planning Department and the Leeward Planning Commission are available.
Favorable recommendations from the Planning Department usually include a requirement that the applicant-developer’s project, including public infrastructure, be completed in a specific time, e.g. five years. That requirement usually includes a provision that the applicant-developer can get time extensions in five-year increments at the sole discretion of the planning director, currently Mr. Zendo Kern. After that, further extensions are available via the Leeward Planning Commission and the County Council with the recommendation of the planning director, even if the prior approval has long since expired without any compliance, and without adequate consideration of public infrastructure problems which have developed during the delay. In my experience, delays of five to 25 years are common. There appears to be no authority in applicable rules and statutes for such procedure. Shouldn’t the County Council, which gave the applicant-developer a huge financial boost with an ordinance for rezoning and subdivision for development within a specific, exclusively have the power to decide on lengthy delays, and to require more infrastructure if necessary ?
For time extensions, it is required that non-performance be “beyond the control” of the developer-applicant. Legal definition of “beyond the control” are such things as floods and labor strikes. The Planning Department has used “family deaths or illnesses, natural disasters, pandemics, global or national recessions.” But the department also accepts and favorably processes extensions when the applicant merely seeks a delay because it completely failed to meet time requirements and the ordinance has expired, or a better profit margin is sought, or a buyer of the project is wanted. These are internal decisions of an applicant or its buyer, and do not meet the “beyond the control” standard.
The Planning Department also admits that it does not have set definitions or standards for defining “beyond the control.” Instead, it accepts all applications for delay, even if the ordinance has long since expired, and does not ask for any evidence of circumstances of “beyond the control.” This results in favorable recommendations for lengthy delays with no proof of “beyond the control” and no additional infrastructure which surely results from the lengthy delays. For instance the traffic jams on the Queen Kaahumanu Highway, Henry Street and the Mamalahoa Highway, near Makalei and in to town, degradation of waters off of Alii Drive from cesspool runoff, etc.
The solution is a sunset clause in all development ordinances and SMA permits, as modern land planning requires. If a developer is not prepared to timely proceed, it shouldn’t apply, just to take advantage of the county for a big payday and a setting of infrastructure requirements that quickly become obsolete. Attractive Kona will always attract developers.
The archaic practice of one Hilo based guy giving out time extensions for West Hawaii without public consideration for new needed infrastructure should end, and sunset provisions should replace that. The Planning Department’s and its director’s jobs would be easier because they wouldn’t have to decide on giving unilateral time extensions or a zone change (although I know of no refusal to give an extension or a negative down zoning), and the clog of demands for lengthy time extensions before the Leeward Planning Commission and the County Council would be alleviated. Developers would have more certainty. And the public and would have more certainty and confidence in the land planning process, and not always be “holding the bag” for additional needed infrastructure.
Deputy Corporation Counsel Michael Schlueter has opined that it is exclusively the Leeward Planning Commission’s kuleana to give delays or continuances for scheduled commission agenda items, despite the planning director’s and department’s past practice of improperly doing so. So too should be the past practice of the director and department in handing out ordinance time extensions. A modern sunset clause is needed.
Mark Van Pernis is a former Leeward Planning Commission member and Kona resident.
