RES 269 Draft 03 2002-2004 - Laserfiche WebLink

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2. Development approvals and timelines require genuine conclusiveness, not havoc, uncertainty and liability. Hawai`i's development agreements statute was enacted subsequent to the Hawaii Supreme Court decision in the Nukoli`i case (County of Kauai v. PaciFc Standard Life Insurance Co. where the Court held that development rights did not "vest" until final discretionary permits were issued. Based upon this decision and the legislature's adoption in 1985 of Chapter 46, Part VII, HRS, the counties were afforded a tool to "encourage the vesting of property rights." Specifically, §46-121, HRS, states: "The purpose of this part is to provide a means hr tivhich an individual mqv he assured a/ a specific point in trme that having me[ or having agreed to meet all of the terms and conditions of the development agreement, the individual's rights to develop a p~roperh~ in a certain manner shall fie vested. " In the case of the Hokuli'a project, some $350 million of investment and construction activity occurred after Oceanside 1250 Partners and the County of Hawaii signed and executed the 1998 Development Agreement. Sales of lots commenced; reportedly, 190 lots were sold by the time the September 2003 injunction was imposed. Building permits had been issued to some lot owners; still other lot owners had retained architects. All this activity was predicated on the reasonable belief that all necessary approvals were valid and conclusive. Now, in the wake of the Third Circuit Court's decision and the failed mediation facilitated by retired judge Patrick Yim, the County of Hawaii finds itself threatened by potential lawsuits from Hokuli`a lot owners. This is an unenviable and untenable position for a political subdivision of the state to find itself. The British statesman Edmund Burke (1729-1797) suggested that "nothing turns out to be so oppressive and unjust as a feeble government." We fear that without affirrnation of a standard of conclusiveness, Hawaii County, along with our neighbor counties, may be so enfeebled by the Third Circuit Court's decision that our ability to grant and uphold necessary planning approvals and negotiate agreements with developers may rightly be deemed hapless and suspect. 3. The level of agricultural use in agricultural subdivisions should be defined by the state legislature and/or the county councils. We are concerned and troubled by the regulatory requirements contained in the Land Use Order relating to prohibition of "luxury" homes in the Agricultural District and the requirement that homeowners in agricultural subdivisions present a "viable" agricultural plan, not otherwise set forth in any state statute, rule or regulation. We believe these requirements usurp the statutory powers of the state legislature and the county councils. On this matter, we believe that the Supreme Court's ruling in the case of Save S~mset Beach Coalition et al. vs. the City and Coiottr oJ'Honoltdu, et al. is on point. That ruling upheld the legislative authority of the Honolulu City Council to rezone and affirmed that the State Legislature must establish standards and criteria in order for the agricultural mandate of the State Constitution to be implemented. The Court held that Honolulu's rezoning "was a legislutive act and 3