New rules for the Planning Department would reduce public participation in one planning process, while increasing public participation in another.
The proposed rules are scheduled for a vote during a 10:30 a.m. meeting Monday at the West Hawaii Civic Center. The rare joint meeting of the Leeward and Windward Planning commissions is the last chance for public comment on the new rules before they’re sent to the mayor. The rules then go to the county clerk for certification and become effective 10 days later.
As proposed, the rules would eliminate public notices for and public testimony during contested case hearings, which are quasi-judicial processes conducted before a hearing officer or one or more commission members. A contested case hearing is scheduled when one of the parties in a case objects to the commission’s decision.
The new rules, if adopted, won’t change public participation in a contested case hearing planned for April 17, 18 and 21. That hearing at the West Hawaii Civic Center will focus on a 306-unit timeshare project by Ocean Villas at Kahaluu Bay LLC planned for 43 acres of culturally significant land above Kahaluu Beach Park.
Nor will they change contested case hearings at the state level, such as for the Thirty Meter Telescope.
Currently, a notice of a contested case hearing must be advertised in two general newspapers twice before the meeting and mailed to surrounding property owners and lessees of record. Those requirements are eliminated in the proposed rule.
If the members of the public find out about the hearing despite the lack of public notice, they still won’t be allowed to testify during the hearing, under the rule change. The purpose of the contested case hearing, staff said, is to focus on the predetermined narrow facts and law that are at issue.
“Think of a court case,” Deputy Corporation Counsel Malia Ho told the Windward Planning Commission on Thursday. “You don’t allow public testimony at a court case.”
The public has an opportunity to voice its concerns and bring up new issues during the initial Planning Commission hearing and the hearing after the contested case hearing when the special master submits his or her report. Written testimony also is accepted during the entire course of the process, staff said.
It’s unclear whether people who aren’t parties in the case will be allowed to observe the meeting, as the rules are silent about whether the hearing master can bar the public from the hearings. It’s unlikely that would happen, so a specific rule isn’t required, Planning Department staff said Thursday.
Commission chairman Gregory Henkel questioned whether the language should be changed to clarify that the public is allowed to observe the hearing. He referred to concerns raised in March 28 testimony by Kailua-Kona attorney Michael Matsukawa.
“I feel, in the interest of transparency, they should be able to observe,” Henkel said.
Matsukawa, the only person to have submitted testimony by Thursday, urged the Planning Department to reconsider the rule. He noted the county charter requires all meetings of county boards and commissions to be noticed and be open to the public.
Even if the commission plans to prohibit testimony at the beginning of a contested case hearing, it still should provide public notice and allow public access to the hearing, Matsukawa said.
“‘Closed meetings’ are not consistent with the county’s long practice of openness,” Matsukawa said. “The public benefit outweighs any burden on the agency and parties.”
In the case of another type of development issue, planned unit developments, known as PUDs, would now be determined by the planning commissions rather than the planning director as currently occurs. This brings public notice and public testimony into what used to be a closed door process.
The new PUD rules follow a 2015 ordinance sponsored by North Kona County Councilwoman Karen Eoff, approved unanimously by the council and signed by former Mayor Billy Kenoi.
A planned unit development is used to create comprehensive site planning that is compatible with the surrounding community by allowing a consistent look while allowing variances from lot size, building heights, road standards within the development and the like. An example is Waimea Parkside, a 40-unit luxury home community.
The county handles just three or four PUD applications a year, staff said.
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
