COM 0762.007 2004-2006 - Laserfiche WebLink

Home

For added information: In January, the Hawaii Supreme Court upheld Judge Ibarra's decision that the informational requirements of the Subdivision Control Code are mandatory. The County has been violating the plain language of the Code for three decades. The Supreme Court held that Planning Director Yuen's interpretation of the law was "manifestly incorrect and unreasonable." As a result of the Supreme Court's decision, Planning Director Chris Yuen is seeking to amend the Subdivision Control Code. This legislation will make it far, far more difficult to stop all the proposed subdivisions in Ka'u. 1. There is no urgent need to amend the Subdivision Control Code. No previous approvals are jeopardized by the court's decision in Leslie v. Board of Appeals. The county code bars challenges of subdivision approvals thirty days after approval. It is true that new applications need to be complete - a requirement that was ignored for three decades. But that does not mean that there is any urgent need to pass new legislation immediately. 2. The sweeping changes are too radical. The proposed amendment to section 23-62(e) (Section 5 of the bill) as well as new language ("unless waived or deferred by the director") to 23-64 (Section 6 of the bill) and 23-66 (Section 7 of the bill) gives the planning director complete and unfettered discretion to approve a subdivision application regardless of how much information an applicant submits. (Note: the Planning Commission recommended that this be modified, but I'm not sure what the new language is.) Much of the information is important for community members to be able to review. The information includes: the location, the approximate layout, the acreage of the subdivision, the number of lots, access lines to State highways, the location of water courses, existing and proposed easements, deed restrictions, a statement regarding the water system to be installed, and provisions for sewage disposal, drainage and flood control. There is one - and only one item - that probably should not be included in the preliminary plat (but is essential in the final): "improvements to be made by the developer and the approximate time such improvements are to be completed." But to suggest that none of the information needs to be submitted - and that the director has sole discretion to decide what information is needed goes too far. Such a proposal disempowers the community. 3. Native Hawaiian rights must be protected. A specific provision should be added to the Subdivision Control Code to require that applicants submit information regarding traditional and customary native Hawaiian practices on the property and measures proposed to protect them. Some will argue that such a provision would be burdensome. No doubt, such a requirement would be a burden - just as it is a burden to ensure that drainage and vehicular access is provided. Society has determined that in order to maintain our quality of life, developers who proposed to subdivide land have obligations to their future buyers - and to us. Protecting traditional and customary practices is no more of a burden than providing necessary infrastructure. Moreover, the law already requires this. By putting the requirement plainly into the Subdivision Control Code now, the County avoids future litigation. Consider: Article XII § 7 of the Hawaii Constitution "places an affirmative duty on the State and 2