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<br /> <br /> <br /> <br /> <br /> <br /> making process.i To the contrary, to ensure that the General Plan ordinance is a <br /> <br /> true mandate (not merely a guideline), this Council added the following language <br /> to the Land Use Element in 2005 (at Page 144): <br /> <br /> "Rezoning is the primary method for changing the allowed uses of land. <br /> Rezoning must be consistent with the General Plan including the Land Use <br /> Pattern Allocation Guide Map. Other facts beside the map consistency must be <br /> taken into account during the rezoning process, which requires specific <br /> consideration of a number of factors to determine the suitability of the property <br /> for the proposed zone. These include proximity to roads, utilities, and public <br /> services, environmental factors such as drainage, slope, and soil types, and other <br /> public concerns." <br /> <br /> 2. In Leslie v. Board of Anneals, 109 Haw. 384 (2006), the Hawaii <br /> <br /> Supreme Court interpreted the word "shall" as it appears in the County of Hawaii <br /> subdivision ordinance to mean "shall," i.e., "must" (no discretion to disregard <br /> <br /> code requirements). <br /> <br /> <br /> 3. In 2005, this Council set forth specific factors that it "must" consider <br /> when it examines a Multiple Residential rezoning proposal (Page 14-42): <br /> <br /> Goals <br /> <br /> (c) [E]nhance the overall quality of life in our residential <br /> communities. added in 2005] <br /> <br /> <br /> <br /> Compare with Protect Ala Wai Skyline v. Land Use & Controls C'ee. 6 Haw. <br /> App. 540, 547 (1987) (parties agreed that then existing Honolulu General Plan has no <br /> force of law); GA DU v Blaine. 88 Haw. 108 (1998) (Kihei development plan ordinance <br /> has full force of law and SMA permit that is not consistent with development plan <br /> ordinance is void). See also Canyon Area Residents for the Environment v. Board of <br /> County Commis, P3d , 2006 WL 1171863 (Colo. App. 2006) (city master plan <br /> not "advisory" that need only be "considered" in approving planned unit development); <br /> Moore v. Maloney, 253 Ga. 504, 321 S.E.2d 335 (1984) (rezoning land to allow <br /> townhouses in established single-family residential neighborhood held invalid where <br /> record shows that council did not follow comprehensive development plan, but instead <br /> used other criteria like increase in tax base and desire for townhouse class of housing); <br /> Conifer Development. Inc. v. City of Syracuse, 473 N.Y. S.2d 662 (1984) (rezoning <br /> amendment "not in accordance with" a comprehensive plan is void). <br /> <br /> <br /> <br /> 2 <br />