The “shalls” have it.
At the request of South Kona/Ka‘u Councilwoman Maile David, the County Council on Wednesday unanimously amended the Kona Community Development Plan to change “should” to “shall,” making mandatory a section that previously read as a recommendation.
“I think this does add some strength and teeth that some people have been concerned about going through the process,” said North Kona Councilwoman Karen Eoff.
The changes in Bill 87 are in response to a 2017 ruling by the Intermediate Court of Appeals that upheld the CDP as law. A Kona couple, Patricia and Richard Missler, sued after the county maintained that the 72-acre Waikakuu Ranch planned unit development was not subject to the CDP.
The new language applies to discretionary approvals such as planned unit developments, special management area permits and subdivision permits, compared to ministerial permits such as building permits, said Deputy Planning Director Duane Kanuha in response to council questions.
“We all agree your change would not specifically affect how we process permits,” Kanuha said.
At issue is a clause listing a number of natural and cultural resources that must be inventoried as part of any permit application with the Planning Department because, “in the context of Kona’s ecology and history … (they) shall be considered sensitive and therefore shall be inventoried.”
The section includes critical habitat, native ecosystems, anchialine ponds, high-level groundwater recharge area, historic trails, archaeological and historic sites and enhanced shoreline setbacks.
David changed “should” to “shall” in this sentence: “Any permit application that encompasses any of the above resources should incorporate these resources as assets.”
Kohala Councilman Tim Richards wanted assurances that farmers wouldn’t be unduly impacted by the new language.
“I don’t disagree that we have to take care of these resources,” Richards said. “(But) is this going to cause an encumbrance that’s going to be problematic for some of the ag community trying to get something done on their land?”
Kanuha didn’t think it would, unless it was a more intensive agriculture operation such as a dairy or processing plant that would need permits beyond a typical agriculture use on agriculture land.
“I really don’t see a permit component in ag if it’s a permitted use in ag,” he said.
Email Nancy Cook Lauer at ncook-lauer@westhawaiitoday.com.
