Waikaku appeal

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The county code lays out PUDs as a way “to encourage comprehensive site planning that adapts the design of development to the land, by allowing diversification in the relationships of various uses, buildings, structures, open spaces and yards, building heights, and lot sizes in planned building groups, while still ensuring that the intent of this chapter is observed.” PUDs allow for a 2-acre minimum lot size, and developers seeking PUDs often request permission for narrower streets, more lots along cul-de-sacs and other variances from the county code. The planning director has sole authority to grant or deny applications without formal public review or scrutiny.

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Hawaii County’s attorneys are relying on arguments against the Kona Community Development Plan that no one raised when the County Council enacted the ordinance, a lawyer for a couple opposing a South Kona project argued Thursday.

“It’s curious, all of the arguments you’ve heard today from Corporation Counsel were never made to the council in 2008,” Michael Matsukawa said as he finished his arguments before 3rd Circuit Court Judge Ronald Ibarra. No one at that time said, “wait a minute, the CDP exceeds the scope. Council, you have no authority to do what you want to do. That some of the language is (convoluted). The court knows full well what is transpiring today.”

Matsukawa represented Richard and Patricia Missler, who say Planning Director Bobby Jean Leithead Todd should not have granted a planned unit development approval to the owners of the Waikakuu Ranch project in South Kona. The Misslers appealed Leithead Todd’s decision to the county’s Board of Appeals, which upheld it. The land is in a watershed that would be harmed by the development proposal, they claimed. The Misslers also argued that the developers, Malama Investments and the Saxton Trust, should have to complete an archaeological inventory study and a survey of possible endangered or threatened plant and animal species.

Deputy Corporation Counsel Amy Self said when a planned unit development application is filed isn’t the right time for those studies.

“Where in the record is it that anything has been destroyed?” Self asked during her arguments. “These issues may come up after. They have at least three more steps to go through. The planning director won’t hesitate to rescind the PUD, if she finds (the developer is) not following laws.”

Ibarra wanted to know how many times the county had rescinded entitlements in such circumstances. Self offered one recent example, which will soon head to the county’s Board of Appeals. Further, Self said, if Leithead Todd had rejected the PUD application without supporting documents, such as archaeological surveys, proof of endangered plants or animals or proof that the watershed on the property led to a water source, the applicant would have sued the county.

But before any PUD application is approved is exactly when the county should be requesting those reports, Matsukawa countered.

“That’s the heart of the CDP ordinance,” he said. The CDP integrates a number of components “and requires the applicant up front to produce the information in one place, so the decision can be sound and thorough.”

The CDP also tries to “close the door” on pushing major decisions back to subsequent planning stages, such as subdivision approval, Matsukawa said. By addressing issues at later stages, the public gets no notice the Planning Department is even considering making a decision, he said.

Matsukawa told Ibarra possible remedies for the situation include Ibarra ruling the PUD should have been denied for procedural reasons, that the planning director failed to follow the CDP in approving the PUD or that the public resource trust was not met. Any of those would bring the situation to an end, as would reversing the planning director and Board of Appeals’ decisions.

Ibarra asked Matsukawa and the county’s attorneys to submit their proposed findings to him by Jan. 31. He will rule sometime thereafter.