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STAFF <br /> Page 2 <br /> May 20, 2003 <br /> ordinance. The strong trend in the United States, however, has been for courts to uphold <br /> these kinds ofsite-specific conditions, as long as they are rationally related to concerns <br /> about the site in question. See generally Rathkopf, sec. 44.4; Anderson, sec. 9.21. <br /> The more modern cases tend to uphold this kind of zoning unless there is something in <br /> the state enabling law that forbids it, such as a clause that the regulations in each zoning <br /> district must be "uniform" (example: California.) Although there is no Hawaii case that <br /> directly deals with this issue, conditions of this sort have been routinely imposed, <br /> apparently without legal challenge, for decades. <br /> In Hawaii, the zoning power is granted to the counties by H.R.S. sec. 46-4. It does not <br /> contain anything that limits the power of the counties to impose site-specific conditions <br /> on a rezoning. It specifically provides that "the powers granted herein shall be liberally <br /> construed in favor of the county exercising them..." <br /> The 1996 Zoning Code authorizes conditions on change of zone through sec. 25-2-44: <br /> (a) Within any ordinance for a change of zone, the council may impose <br /> conditions on the applicant's use of the property subject to the change <br /> of zone provided that the council finds that the conditions are: <br /> (1) Necessary to prevent circumstances which maybe adverse to <br /> public health, safety and welfare; or <br /> (2) Reasonably conceived to fulfill needs directly emanating from the <br /> land use proposed with respect to: <br /> (A) Protection of the public from the potentially deleterious effects of <br /> the proposed use, or <br /> (B) Fulfillment of the need for public service demands created by the <br /> proposed use. <br /> The Zoning Code, therefor, specifically allows special conditions "on the applicant's use <br /> of the property." <br /> <br /> Although it is not clear that the council must explicitly make the "findings" in the <br /> ordinance, it is definitely the better practice for the rezoning ordinance to contain the <br /> specific findings recited in sec. 25-2-44 whenever the rezoning ordinance contains <br /> <br /> conditions that limit some use of the property that ordinarily accompanies the rezoning, <br /> <br /> or imposes requirements that do not automatically follow from other laws. For example, <br /> <br /> these findings should be made to impose conditions that the applicant put in a traffic <br /> <br />