COM 0770.004 2002-2004 - Laserfiche WebLink

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Kiriu, Connie From: Leithead-Todd, Bobby Jean Sent: Monday, October 04, 2004 6:13 PM To: Kiriu, Connie Cc: Doran, Charmaine; Yuen, Chris; Torigoe, Ivan Subject: RE: Request for Updated Opinion Still working on request. Out of office next two days for contested case hearings and then next two days for LUC and BOA meetings. The Mike Matsukawa opinion of 1991 sets out the basic analysis that should apply to an addition of conditions when a landowner comes in for a time extension. Briefly, I think the critical issue is whether the landowner has "vested" his rights through a "final discretionary action." Additionally, one must look at whether the landowner has changed his position in reliance on government assurances. What you are looking at is the question of "vested rights" and ,.equitable estoppel." In most time extensions, the developer has done little or nothing to comply with the conditions of the rezoning. However, in some cases, a landowner has substantially complied with the conditions and has expended a lot of money in reliance on the underlying zoning. Generally, even "permits for buildings and businesses are not per se protected against revocation in effect by subsequent enactment or amendment of zoning laws prohibiting the building, business or use for which they were issued." County of Kauai v. Pacific Standard Life Insurance Co., (Nukolii) 65 Haw. 318 (1982). Thus when the county general plan was amended, a landowner could not build pursuant to his underlying zoning, as it was inconsistent with the amended general plan. GATRI v. Blane, 88 Hawaii 108 (1998). It is clearly established in Hawaii case law that counties can downzone property. If it is permissible to downzone, then it is clearly permissible to add conditions upon granting an extension of time, so long as the landowner is not being discriminated against, has acquired vested rights or has otherwise a right to equitable estoppel. So long as the type of amendments/conditions sought by the Planning do not violate any of the above concepts, the original rezoning ordinance can be amended. Thus if, the conditions are similar to those imposed on other property that currently comes in for rezoning, is not adding additional requirements to a condition that has already been fulfilled or substantially complied with (or the landowner has expended substantial sums of money and has acted in good faith), I see no problem with the imposition of new conditions that were not applied at the time of the original rezoning. I apologize that I don't have a more formal fleshed out opinion for you. Basically, the analysis in the last two paragraphs of Mr. Matsukawa's 1991 opinion are still valid today. -----Original Message----- From: Kiriu, Connie Sent: Monday, October 04, 2004 8:43 AM To: Leithead-Todd, Bobby Jean Cc: Doran, Charmaine Subject: Request for Updated Opinion What is the status of WRK 04-8468 (Request for an updated opinion on prior Corp Counsel opinions relating to the issue of changing or adding new conditions to a request to extend the time of compliance of a zoning 1 Comm. No. Ref. To:Pr Ref. Cate_,~