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HomeMy WebLinkAbout2013_0722_Minutes Open_APPROVED COUNTY OF KAUAI Minutes of Meeting OPEN SESSION Approved as circulated 8/26/13 Board/Committee: CHARTER REVIEW COMMISSION Meeting Date I July 22, 2013 Location Mo'ikeha Building, Meeting Room 2A 2B Start of Meeting: 4:02 p.m. End of Meeting: 5:08 p.m. Present Chair Jan TenBruggencate; Vice-Chair Ed Justus. Members: James Nishida, Patrick Stack Also: Deputy County Attorney Jennifer Winn; Boards & Commissions Office Staff: Support Clerk Barbara Davis; Administrator Paula Morikami; and Curtis Shiramizu of Shiramizu Nakamura Loo, Attorneys at Law Excused Member: Joel Guy Absent Members: Mary Lou Barela; Carol Suzawa SUBJECT DISCUSSION ACTION Call To Order Chair TenBruggencate called the meeting to order at 4:02 p.m. with 4 Commissioners present. With no changes or amendments to the agenda, the agenda stood approved as circulated. It was also noted that there were no members of the public present. Approval of Open Session Minutes of May 20, 2013 Mr. Justus moved to approve the minutes as Minutes circulated. Mr. Stack seconded the motion. Motion carried 4:0 Business CRC 2013-03 Recommendations from legal analyst Curtis Shiramizu on identifying and proposing non-substantive corrections and revisions to Articles XI through XV of the Charter. (On-going) Mr. Shiramizu thought the proposed changes for this section were pretty straight forward except for §14.04, Planning Department, which can be discussed when they get to that section. Mr. Stack asked if they needed to define, discuss, or delineate what "necessary staff' is in Section 11 .01. Attorney Winn said that was beyond non-substantive corrections or revisions and not part of the agenda item. Mr. Shiramizu explained that Section 11 .07 corrected a typographical error Charter Review Commission Open Session July 22, 2013 Page 2 SUBJECT DISCUSSION ACTION in the codified version; in the official version it is correct. Mr. Justus asked if it was prudent to change sections that are written numerically to spell it out such as the chapters of the Hawai'i Revised Statutes (H.R.S.) or in a previous section where it spells out"ninety days" (§11.03 C), as opposed to using a numerical value. Mr. Shiramizu said he has never seen references to H.R.S. chapters spelled out, it has always been numerical. Section 13.03 C: Insert "of'between the words dispose and garbage to read Collect and dispose of garbage and refuse. Mr. Justus also questioned the last sentence of Section 12.04 in which "section"was in lowercase but noted that elsewhere in the Charter it is capitalized. Chair TenBruggencate asked Mr. Shiramizu to make note of issues in which sections of the charter are referenced,figure out what the standard is, and apply that same standard throughout. Mr. Shiramizu read notes from the CRC's May meeting on capitalization which says keep the lower case as in the official charter version unless it has to be capitalized. Chair TenBruggencate asked Mr. Shiramizu to also report back on what the standard is with regard to whether"section" is capitalized or not, and if it is to please capitalize Section12.04 as pointed out by Mr. Justus. Mr. Justus noted the same should apply to the word "article". Mr. Justus said in the section for the Police Chief it refers to an amount of time such as "ninety days"but it does not reflect a numerical value as it does in other parts of the Charter. He suggested any time a numerical value Charter Review Commission Open Session July 22, 2013 Page 3 SUBJECT DISCUSSION ACTION is spelled out it should also be identified in numerical form. He also pointed out under the requirements for the Police Chief it states he will have a minimum of five years which is spelled out but it does not show the numerical value with it. Mr. Stack said the only time he has seen what Mr. Justus is suggesting consistently is in its relation to dollars, and so his initial thought is it usually applies to monetary issues and not non-monetary issues. Mr. Justus said there are many instances in the Charter that use both formats. Chair TenBruggencate said there is also the question of what impact that has on readability. Section 14.02 has several numbers in it and it will impact the readability if they start adding parentheses and numbers when it refers to seven members, two members, two members, etc. For numbers under ten it is not necessary, and he does not know why it is done for ninety or two-thirds. Chair TenBruggencate said his sense was that it does have the potential to make the Charter a lot more technical than it needs to be, and more difficult to read. Chair TenBruggencate suggested looking at each instance as it comes up. Mr. Shiramizu pointed out there is a difference between the official version and the codified version in Section 14.04. In the codified version there is a comma after the word engineering, but in the official version instead of a comma there was the word "or", which is an error in the transcription. The qualifications should read: a college degree in planning, engineering or architecture, or shall have... ... ... .. The Commission members agreed it should be stated as in the original Charter. Mr. Shiramizu also pointed out that the official version had the word either before planning, engineering or architecture. Chair TenBruggencate said it is appropriate to drop the either because they are not looking between two, Charter Review Commission Open Session July 22, 2013 Page 4 SUBJECT DISCUSSION ACTION they are talking three. The Commission agreed to drop either. Section 14.10 the header should be plural, i.e., Zoning Ordinances. CRC 2013-10 Discuss how to initiate community discussion on proposed charter changes that are necessary or desired (Deferred 5/20/13) Chair TenBruggencate asked that this item be deferred for 3 meetings (November, 2013) CRC 2013-11 Briefing from the County Attorney on the status of Kauai County Charter Section 3.19, after order in Kaua'i Beach Villas—Phase II, LLC. V. County of Kaua'i Chair TenBruggencate explained that as keepers of the Charter they need to know what is going on so he asked Attorney Winn to give them a sense of what the Court ruling on Section 3.19 means. Attorney Winn stated there was a Federal District Court ruling in the case of Kaua'i Beach Villas vs. County of Kaua'i regarding the TAU (Transient Accommodation Unit), Section 3.19 of the Charter. Based on the Judge's ruling, which came down on June 28, Section 3.19 in the Charter is now void. The reason for that is one of the development companies sued the County with 3 counts; one was a substantive due process argument which the Court in this decision didn't reach. They also said that the County basically overstepped its authority by doing this, which will be explained since this is the crux of the matter. The third thing is the plaintiffs in the case said this violated a Charter section that required an objective summary on the ballot. This particular Charter section was by a citizen's group called Coalition for Responsible Government, and it was a voter initiated amendment. The Court said that Hawai'i Revised Statutes (H.R.S.) §46-4, which is the zoning enabling act, pre-empted our Charter meaning that it was inconsistent so the H.R.S. takes precedent. The County can only do what Charter Review Commission Open Session July 22, 2013 Page 5 SUBJECT DISCUSSION ACTION the State Legislature has given the authority to do. There is specific statute that says we can develop our own Charter, however it specifically says that in cases of State-wide interest, State statutes will pre-empt County. For the most part Kaua'i has home rule which has to do with structure, government officials, and that type of thing. In those situations our Charter would pre- empt if it was different than a State statute. The Court went on to say that §46-4 was specific in that it gave the Councils the ability to enact zoning ordinances. The Court said that the County overstepped its authority through a voter initiative to the amendment, and if there is going to be any zoning issues it needs to be by ordinance. Chair TenBruggencate added that the amendment, in essence, limits the number of new visitor units that can be developed on the Island and that is considered to be a form of zoning. This amendment was put into effect through a charter amendment, which is not a traditional way to do zoning. Chair TenBruggencate said his understanding of the theory in Hawaii is that zoning is a legislative act that requires the bodies that are involved to go through a process, and you do not just put it to the voters. Chair TenBruggencate said he understood the Judge's ruling to basically say in this State you cannot do zoning through a charter amendment. Mr. Justus said if this stipulation was in the CZO (Comprehensive Zoning Ordinance)that would be different. Attorney Winn said it was two-fold. It was not saying that only if there is a voter initiated petition by ordinance they are not saying that is okay; they are saying the Council has to legislate it by ordinance. Mr. Nishida said the Council did do a follow up ordinance. Charter Review Commission Open Session July 22, 2013 Page 6 SUBJECT DISCUSSION ACTION Attorney Winn said they did do a follow up ordinance; the Court said that the ordinance was so entwined with the charter amendment that(inaudible - overtalking). Asked if the ruling would be appealed, Attorney Winn did not know. The ruling was filed on June 28, and the County would have to appeal within 30 days or by July 28; but that is a decision for the Council. Mr. Stack asked if it were to be appealed would that change Section 3.19 in the Charter. Attorney Winn said no. It is the same situation as with the Police where one Judge said the Mayor has the power to discipline, and that is what the law is unless another Judge overturns that ruling. Attorney Winn further explained that not only did the Court look at the Statutes where the State Legislature has given the Counties the ability to develop their own zoning they also looked at a case file, which was almost directly on point, and determined it had to be through the Council. The Kaua'i Beach Villas' motion was for a summary judgment, and the Court said no one brought up count 1, which was the substantive due process. The Count decided that count 2 was clear and count 2 will take care of this in that if the petitioners or plaintiffs are correct the charter amendment goes away. It also talked about count 3. The plaintiffs had said the County violated the Charter by not having an objective summary on the ballot regarding what the ballot question was about. Asked what was meant by an objective summary, Attorney Winn said they did not exactly say and they did not address whether or not there was an objective summary either. What they said was the section of the Charter that plaintiffs were citing from only had to do with ordinances given to the voters; not charter Charter Review Commission Open Session July 22, 2013 Page 7 SUBJECT DISCUSSION ACTION amendments given to the voters. The Charter requires that if there is a voter initiated petition or referendum it requires an objective summary for that. There is nothing in the Charter that requires an objective summary for charter amendments. That is all the court looked at; it did not decide whether or not the information that went to the voters on this particular case was okay. Chair TenBruggencate said that the objective summary refers to the leaflet that sometimes is created to explain the "for" and "against" of the issues. Attorney Winn said there is nothing in the State regulations that require pros and cons. The charter does require it for initiative referendums. Attorney Winn further explained that this is the second voter initiative in the last few years that a court has said it can't be done, and there could be many reasons for that. This Commission has mentioned in the past that fewer signatures are needed for a charter amendment than an ordinance which goes before the Council. Attorney Winn said that may be the reason why these amendments are being done through the Charter versus an ordinance. The other issue is that one section of the Charter requires an objective summary. Chair TenBruggencate said with regard to the physical presence of this section in the printed Charter, as part of cleaning up the non-substantive issues, can this text just be removed from the document or does it need to be left in with a note saying it has be invalidated. Attorney Winn said personally she thought it needed to be left in. Staff asked if it would be left in place or moved to the end of the Charter like was done for the `Ghana real property taxation. Mr. Stack thought by leaving it in place it was saying it was being held in abeyance for some Charter Review Commission Open Session July 22, 2013 Page 8 SUBJECT DISCUSSION ACTION reason. Attorney Winn said she would check the legalities of how to handle this section since Chair TenBruggencate thought if it was not legal it should be taken out. If there is an appeal, the decision can take years. Mr. Nishida stated that in the instance where the County would utilize the implementing ordinance, they can no longer do that. Attorney Winn said that ordinance is gone also. Mr. Justus said he had been told there was no legal review done by an internal part of the County on the `Ghana tax amendment before it went to the ballot and asked if the County did a legal review for Section 3.19. Attorney Winn did not know. Attorney Winn thought there was a section that permits the County Attorney to look at it but does not require them to do so. Mr. Justus thought maybe it should be made a requirement since two voter proposed amendments have been defeated for legal reasons. Attorney Winn said it goes to attorney-client issues and the County Attorney is the attorney for the County; she was not sure how this worked with voter proposed amendments. Mr. Nishida said it's up to the people who put it together to review the whole thing. The County told the group who put together the tax amendment that it was up to the County to do the taxes, but the group wanted to go ahead with the proposal. Mr. Nishida was sure there was a legal review. Charter Review Commission Open Session July 22, 2013 Page 9 SUBJECT DISCUSSION ACTION Chair TenBruggencate said in the case of§3.19 the County Attorney's Office looked at it, and the Chair understood they chose not to try to invalidate it in advance of the voter's decision. Just as a matter of policy, the County Clerk's Office always runs these proposals by the Attorneys. Attorney Winn said hypothetically if there is a legal review and the County Attorney's Office says this is not legal, then what? If you have enough signatures the amendment will go on the ballot. Chair TenBruggencate said the Attorney's Office can invalidate a proposed amendment and tell them to not put it on the ballot, and they will sue and there will be a court case. Or it can go to the voters, and if it loses that is fine, but if it wins it will be appealed because in this State you cannot do zoning by initiative. Either case you wind up in court, but if it goes on the ballot the County's risk is less because there is a chance the voters will not pass it. The Chair felt there was a legal review in every situation, but the legal review may not solve the problem. Mr. Nishida thought the Council tried its best to straighten this out by passing the ordinance. Chair TenBruggencate said whether or not this section is invalidated it sent a message about what the voters of this island think about visitor industry growth. In that way it was successful. Mr. Justus thought maybe the people were not being given the right venue to actually get the changes they are wanting. Chair TenBruggencate recapped that Attorney Winn will check into what will happen going forward with the blocks of text in the Charter for Section 3.19, and whether they can be removed a part of the non-substantive Charter Review Commission Open Session July 22, 2013 Page 10 SUBJECT DISCUSSION ACTION changes or if they get moved to a different place. Mr. Justus suggested instead of moving invalid sections around it should be kept in the same section with a notation at the end of the section that it was invalidated by the court. Chair TenBruggencate said he personally would rather have the section out so what is in the Charter is in force. Mr. Stack agreed saying that by leaving it in the Charter it gives it some special status. If it is no longer part of the Charter because it was invalidated, why should it be put in some type of historical reference; it gives it a different status which it does not deserve. In discussion of the official version of the Charter, Attorney Winn stated that the official version comes from the County Clerk. Attorney Winn further explained that the official version that the County Clerk has is the original charter with each election's official amendments attached, and it would be that office's responsibility to issue a new codified version of the Charter. Chair TenBruggencate asked why the Commission could not give the voters a clean copy of the Charter with all the changes that were made. Attorney Winn said that was not their roll. Staff reminded the Commissioners that the changes have to be provided to the public in Ramseyer format. Attorney Winn said the voters can be given the documents that show all the changes that a particular question encompasses, but the only person who can do the official version of the Charter is the County Clerk. Charter Review Commission Open Session July 22, 2013 Page 11 SUBJECT DISCUSSION ACTION Chair TenBruggencate said the voters are the ones who establish what the Charter is, and cannot the question be phrased in such a way to create a clean copy of the Charter for the County Clerk, a new starting place. Attorney Winn said it could be a starting place, but until the County Clerk said it is the codified version it is not a codified version. It can be a clean version, but that is what the unofficial codified version is supposed to be. Chair TenBruggencate said as the Commission has seen, the Clerk's Office makes grammatical errors that change the original Charter so he is suggesting that the Commission give the voters the opportunity to say 2014 is the new starting place. Attorney Winn said she did not disagree, but it still is the County Clerk who will say what the official version is. Announcements Next Meeting: August 26, 2013, 4:00 p.m.; Meeting Room 2 A/B Adjournment Mr. Justus moved to adjourn the meeting at 5:08 p.m. Mr. Stack seconded the motion. Motion carried 4:0 Submitted by: Reviewed and Approved by: Barbara Davis, Support Clerk Jan TenBruggencate, Chair ( ) Approved as is. ( ) Approved with amendments. See minutes of meeting.