The Honolulu Charter Commission, at a busy meeting Thursday, nixed a plan to give city planners more leeway in issuing zoning variances and advanced a proposal requiring all nonprofit groups to be vetted before being allowed to get taxpayer grant money.
Proposal 81 had called for changing the charter provision to allow the Department of Planning and Permitting to make it easier to get zoning variances by loosening the standard of proof to show “practical differences” rather than “unnecessary hardship.”
On Thursday the proposal failed to muster enough votes to advance. With only 10 of the 13 members present, the commission deadlocked with four voting to support the change, four voting to reject it and two abstaining.
While it is on Wednesday’s commission agenda, as well as Wednesday’s Charter Commission Style Committee agenda, it is not expected to be taken up, according to Commission Chairman David Rae.
Commission member John Waihee, a former governor and a strong proponent of Proposal 81, said there’s a remote chance it could be resurrected if one of the four voting to reject it asked for a revote. But he doesn’t expect that to happen, he said.
The failure to move out Proposal 81 was met with relief by environmentalists and other land-use watchdogs worried that the measure, initiated by the Department of Planning and Permitting, would be used to allow variances to developers of large-scale projects, thus bypassing standard land-use laws.
Department officials said they had no intention of advancing large-scale projects by allowing the change in standards and wanted the change simply as an additional tool for dealing with requests for variances unrelated to the use of the property, but rather for physical or structural features such as building closer to the street or shoreline or higher than regulations allow.
The version of the proposal voted on Thursday called for removing existing language involving zoning variances from the Charter, leaving it up to the City Council to come up with the rules by ordinance.
Commission member Nathan Okubo, a real estate attorney, said he supported the proposal because the current law has hindered families who could otherwise have benefited from variances allowing them to improve their properties.
Commission members Donna Ikeda and Cheryl Soon, a former city planning director, said they were worried about unintended consequences the change might incur.
Ikeda said the panel could not come up with satisfactory language to help smaller residential owners.
“I do not want to open Pandora’s box,” she said.
Urban planner John Whalen, a former city land utilization director, testified that even if the current city administration were to keep its promise not to help major landowners make large-scale changes, there’s no way to get guarantees from future political leaders.
Several opponents said the change to the Charter could be used to help Kyo-Ya if it chose to continue with plans to rebuild the Diamond Head wing of the Moana Surfrider Hotel in Waikiki.
Environmental attorney Linda Paul said she was troubled that much of the language used to argue for the charter amendment is similar to arguments used by the city in its unsuccessful defense in a Hawaii Supreme Court case in which it was determined that the city improperly granted Kyo-Ya a coastal height setback variance. In 2015 the court threw out the variance granted by the city planning director and affirmed by the Zoning Board of Appeals.
But department Director George Atta told commission members he was bothered by criticism that the change was proposed to help larger developers. Of 77 variance applications submitted since he became director more than three years ago, 48 have been rejected, 22 approved and seven are pending, he said. None of those approved were given to large-scale developers.
Still, Atta said, removing language regarding variances from the Charter, and placing them into ordinances, makes zoning variances consistent with how other types of variances are defined.
Paul, who represented opponents against the Kyo-Ya variances in court, said zoning variances are different. “It’s important that variances are difficult to get and that property owners are on notice, when they purchase property, of the restrictions on their property,” she said.
After the meeting, Paul said “there is already a zoning adjustments mechanism for providing relief for small landowners from strict application of development standards.”
In separate action, the commission voted to forward Proposal C-7, which calls for all grants-in-aid the city hands out to nonprofit agencies to go through an already established vetting process involving a Grants in Aid Fund and a Grants in Aid Commission that makes recommendations.
The proposed language simply adds language stating that the GIA Fund is “the sole source of funds” for grants-in-aid to nonprofits.
The issue has been a tug of war between Mayor Kirk Caldwell and Council leaders. A charter amendment passed several years ago required 0.5 percent of all general fund revenues go to the GIA Fund. But the Council is free to ignore the GIA Commission’s recommendations, as well as insert additional general-fund dollars independent of the process, and has been doing so in recent years, despite the fact that Caldwell has refused to fund nearly all the added grants.
Caldwell wanted language capping the amount going to charities to the 0.5 percent, but Council leaders wanted the flexibility to direct money to nonprofits however they like.
The commission rejected Caldwell’s proposal for a ceiling but also inserted the language making the GIA Fund the only source of funds for nonprofits to be able to tap.
“Removing the grants-in-aid provision from the Charter doesn’t end the Grants in Aid program,” Waihee said. “There is, in fact, an ordinance that establishes how moneys may be granted. … The main thing is, everybody has to go through the same process.”
The decision came after a slew of representatives for various nonprofits testified against abolishing the existing system that provides a minimum of $6 million annually to various charity groups. As they’ve done previously during commission meetings, the nonprofits pleaded for the commission to keep the status quo.
Several said they don’t mind going through the same vetting process for all grants-in-aid funds.
