COM 0045.022 2002-2004 - Laserfiche WebLink

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III. WHAT THE PLAN REQUIRES: SELECTIVE EXAMPLES The Draft Plan makes many references to the preservation and protection of important agricultural lands, as in the following: - under "Policies" at page 31 and 32 - under "Courses of Action" at page 43, 47 - under "Policies" at pages 276 and 277, and in particular the following language: "Designate, protect and maintain important agricultural lands from urban encroachment"; "Ensure that development of important agricultural land be primarily for agricultural use"; "Important agricultural lands shall not be rezoned to parcels too small to support economically viable farming units" - under "Courses of Action" at page 282, and in particular "Protect important agricultural lands within the Kona Coffee Belt from urban encroachment through the use of zoning and other mechanisms" The Draft Plan also provides for the creation of a county conservation lands category at page 327 under "Policies": "Amend the Zoning Code to create a category for lands that should be kept in a largely natural state, but that may not be in the [state, presumably] Conservation District, such as certain important viewplanes, buffer areas, and very steep slopes." There follows on the same page a series of "Standards" stating that the aforesaid Open Space designations "shall include:" Forest areas, water areas, potential natural hazard areas, Natural Areas and Reserves, Open Space Recreation Areas, Scenic l/istas and View planes, and General Use Conservation Sub-Zones with Compatible Uses. To the extent that this new Open Space zoning designation or classification attempts to regulate any use whatsoever in the State Conservation District, the County is almost certainly exceeding its authority under the State Land Use Law (HRS 205 et seq.) which leaves the control of land use in any and all sub- zones in such Conservation District solely in the hands of the state and its Department of Land and Natural Resources. Thus, for example, to the extent the DLNR permits, through its conservation district use permits (CDUA) single-family residences in its general sub- zone, the County may not forbid such use because it lacks the authority to do so. It would also almost certainly be a violation of the U.S. Constitution as more fully described below. IV. THE APPLICABLE LAW More importantly, as intimated above, the language so far noted above appears to restrict uses on important agricultural land to agricultural use only, and to prohibit most uses altogether in the proposed new Open Space district. To the extent agricultural or other permitted uses are not 3