First a correction. In the comments below my post about the law the county violated that led to the automatic issuance of the Koloa Marketplace zoning permit, reader Kaulike points out that the class of permit applied for implicates a different code section than the one I cited.
I'll let Kaulike discuss the section's requirements. Kaulike goes on to make an interesting point/allegation about how the planning department has interpreted the code up until now.
Actually for Class IV permits it is Sec. 8-19.6,... which provides;
That the Planning Dept has 60 days after "filing of a completed application" to issue a Planning Directors report on the application, and;
Upon issuance of the Directors report they have another 60 days in which to
a.) ... "hold at least one public hearing on the application, and .... "
b.) ... "issue the permit with or without conditions or deny the permit"
The interpretation of the Planning Department, apparently going back many years, to well before Mr. Costa was in charge, was that they read it to say - for the second 60 day period - that once they opened the public hearing the clock stopped until they closed the hearing, at which time the clock started again.
This is not however what the Code says. Its clear says that in the 60 day period after issuance of the Directors report they have to hold a hearing, and approve or deny. If the do not accomplish these goals the Code then states:
If the Planning Director or the Planning Commission fails to take action within the time limits prescribed in this Article, unless the applicant assents to a delay, the application shall be deemed approved
So - the County has 60 days total in which they are to hold a public hearing and vote to approve or deny - and if they do not do those things - on the 61st day the project is approved as submitted.
Unlike many laws this one is pretty much completely clear. The only possible question is what constitutes filing of a completed application? And there is very little wiggle room there.
If an applicant fills in the blanks and provides the information required - there isn't much discretion it would seem - it is "completed". Some states give a municipality the right to reject an application - however that requires them to respond in a short period - 15 days or less - and provide a written list of exactly what information is missing - what needs to be added to constitute a complete application.
Regardless, the County at some point does "accept" and begin processing an application. And there should be little doubt that would start the clock.
This section of the Kauai County Code is as required by Act 164, Session Laws of Hawaii 1998 - and if you read the Legislative Review from 2000 on Act 164 you'll see all the reasons it was enacted ... reasons that read like a blueprint for how the developers are treated today by activists and the County.
Act 164 was created specifically to curb the widespread abuse and disregard of the laws at the time ... and the exact same abuse and disregard is occurring today.
Hawai`i's Automatic Permit Approval Law Legislative Review:
http://www.state.hi.us/lrb/rpts00/permit.pdf
If one is interested, several interesting comments have accumulated below the two posts on this issue:
But is it true?
and
Here's the law the county violated in the Koloa Marketplace development case
7 comments:
Interesting topic, Charlie. This has become a more pressing issue since the county ordinances and agency rules regarding the autoapprove requirements are mandated by state law. Kauaifolk can take solace in one thing: at least you aren't as bad off as Maui County, which has never bothered to enact ordinances or rules for autoapprove, despite the state law mandate that the counties "shall" enact such rules.
Thanks, Robert. These two cases in Koloa have been a good intro to the issue for me. I would think the failure to adopt mandated rules specifying maximum time periods to grant or deny permits would open a county up to due process claims.
Again, although lengthy, the Legislative Review of Act 164 linked in the other comments is an interesting read. Especially the sections regarding the reason Act 164 was needed in the first place.
Exactly the same type abuses, unequal treatment and lack of due process we see today caused Act 164 to be enacted.
As somewhat of an outsider looking in one perspective might be Hawaii to an extent, but Kauai more so, is still a "youngster" when it comes to operating under a structured municipal mindset.
The mainland has had many years to create laws and then operate under, develop and get used to them. Kauai is still in some ways the "Wild West" - not in any way intending to be derogatory - simply an observation.
The "island way" of operating has prevailed for many years, without a lot of development not much need to be more formal. Things got done the way they always have.
This worked when all worked together. But as development accelerated - just as in the lead up to Act 164 - the municipal process came to be a tool (or weapon) ... to slow things down, delay etc.
For a fair while, when the market was hot and growing, developers seemed to just accept it.
Times were good and they could afford to pay exactions far in excess of rational nexus, and it was easier to pay than argue.
Now the delays have pushed projects into a slow market, where they have less ability to simply pay - or practice "grin and bear it"
As a result, while it still appears most are making good faith efforts to try to accommodate community concerns, the actions of the activist groups in blocking projects that have made an effort, and are well within legal and allowable, are finally it seems drawing lines.
When good faith efforts are met with a lack of cooperation seems there is little choice left but to hold the County accounatble for following the laws.
"If it fits you must permit..." seems to well illustrate the issue. While there is latitude in some areas, as provided by law, in general if a project meets requirements there is not justifiable reason to turn it down.
Seems this is largely what is occuring. Projects zoned, entitled, and completely permitted and proper under the County General Plan are being denied. The reasons might be legitimate community concerns, but it appears they are largely without legal basis or merit.
By all appearance the Planning Department is recognizing this and recommending approval with conditions (which may or may not be legal either but thats another discussion).
The Planning Commision, although good, well intentioned, hard working folks, it seems often disregard staff recommendations and findings and make decisions based on sentiment or publci comment rather than legal foundation.
Another important point is the treating of projects differently on similar issues.
Which again, leaves projects and developers with little choice but to pursue equity thru legal remedy.
And when they prevail, as it seems most likely will, it is unfortuantely at considerable expense - in legal costs, delay costs, but perhaps most importantly good will.
And those losses, especially goodwill, make it very hard to go back and ask or expect project to want to talk to community later.
As with Koloa Marketplace.
Sadly, in the long run, everyone loses. The developer through costs of delay, legal etc. Most significant the community. The actions of the activists end up costing community whatever good will, concessions and accommodations the developer may have been willing to consider.
In end a lot of people get riled up, a lot of money is wasted on banks and lawyers, and a poorer end product than a little common sense and cooperation could have produced is the result.
Keep in mind who pays the County costs - I think I read an article outside legal expenses were approaching a million dollars in last year. All paid by taxpayers pockets.
And every dollar spent (or wasted) thusly is a dollar that cannot be spent of pressing County issues.
The bottom line is the County has at least 4 full months to process and approve or deny these applications and still comply with the law. They can also ask an applicant to voluntarily allow more time for legitimate reasons.
Almost every app I've seen is very detailed and professionaly prepared. 4 months should give time for staff review, and public hearing. The Planning Commisions could also take a firmer stance with community input - setting similar limits for response.
With a firm set of rules - a good roadmap and timeline - and then requiring all parties to adhere to it - much of the problem can be addressed/minimized.
The County could also, first define "filing of 'completed' application" - and second, set up a pre-application checklist of items required prior to acceptance of the app.
This is it seems already occuring, however it is also a balancing act - due process and equal treatment requires that any such pre-app rule does not get used to unreasonably delay or refuse applciations.
Every party dealing with a governing agency deserves clear rules and a finite timeline for performance and a right to rely on them. This is actually the foundation it would seem for Act 164 ....
While "automatic approval" laws like Act 164 (now section 91-13.5, H.R.S.) serve a useful purpose in protecting project proponents from from unfair treatment by state and county agencies, they may do so at at the expense of the public's legitimate interest in environmental protection if a sloppy or collusive agency allows projects to be approved "automatically" without the imposition of conditions necessary to protect important resources. Furthermore, as LRB's 2000 study of Act 164 noted (pp. 35ff), this abdication of an agency's environmental responsibilities could raise constitutional problems for the project proponent if natural resources and customary and traditional rights fail to receive the protection they are due under Public Access Shoreline Hawaii (PASH) and Ka Pa'akai O Ka 'Aina v. Land Use Commission or if the public's procedural due process rights are ignored.
ccc .... 'allowing a project be approved' is something we don't typically have to worry about on Kauai these days (grin)
You bring up a fair point however, that, with everything there needs to be balance. And the giverning agency(s) need to manage environmental and other issues. That said the Planning Dept automatically routes every application to pretty much all agencies for comment.
I beive they give them a clear timeline to respond, which as I understand they do not always timely manage.
They do have the opportunity to comment, and it would seem as long as they do, it is their responsibility to timely respond. If they fail to do so, when there is a statuatory clock runnning, it would seem they should/would forfeit the right, effectively be "deemed approved"?
Kaulike: I'm not in any way seeking to excuse or justify the actions of agencies that delay projects unreasonably by failing to act in a timely manner on completed applications submitted to them for approval. My point is that the matter is not just an issue between the agency and the project proponent; Hawaii's land use statutes and ordinances act to constrain agencies in the approval of projects on behalf of the public's interest in environmental protection, and in PASH and Ka Pa'a Kai the Hawaii Supreme Court has recognized that agency approvals may be set aside if they fail to recognize that public interest, or to allow members of the public a reasonable opportunity to review and comment on development proposals that may affect constitutionally protected resources. There is no reason to believe that a permit issued "automatically" would be any less subject to challenge than one acted upon and unlawfully approved by an agency.
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