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COM 0056.001 2006-2008
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COM 0056.001 2006-2008
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Last modified
5/12/2008 2:48:07 PM
Creation date
5/8/2008 5:12:43 PM
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Communications
Communications - Type
COM
Communications - Council Term
2006-2008
Communication
0056
Point
001
Author
K. Angel Pilago, Councilmember Chair, Planning Committee
Communications - Referred To
COUNCIL
Comments
Council: Close file - 1/19/07 Council: Postponed to the Council's January 19th meeting - 1/4/07 Presented: Council - 1/4/07
Document Relationships
AGE COUNCIL 2007/01/04 2006-2008
(Related)
Path:
\Council Records\Agendas\2006-2008\Council
AGE COUNCIL 2007/01/19 2006-2008
(Related)
Path:
\Council Records\Agendas\2006-2008\Council
BIL 220 Draft 01 2004-2006
(Related)
Path:
\Council Records\Bills\2004-2006
BIL 221 Draft 01 2004-2006
(Related)
Path:
\Council Records\Bills\2004-2006
COM 0056.000 2006-2008
(Related)
Path:
\Council Records\Communications\2006-2008
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<br /> POP: gatri v. blane Page 9 of 11 <br /> Protect Ala Wai, 6 Haw. App. at 547, 735 P.2d at 955 (emphasis added). <br /> In Protect Ala Wai, the appellant conceded that the general plan did not have the force and effect of law. <br /> The ICA accepted this statement, and the opinion does not fully analyze and consider this issue. This <br /> proposition, in the SMA context, is cleazly incorrect and we overrule Protect Ala Wai to the extent that it <br /> affirms this erroneous proposition. <br /> HRS § 205A-26(2)(C) provides in relevant part that a SMA permit shall not be approved unless the <br /> authority finds that "the development is consistent with the county general plan and zoning." (Emphasis <br /> added.) The circuit court's conclusions that (1) the general plan does not have the force and effect of law <br /> and (2) because the project was consistent with the zoning, it is ep <br /> r se consistent with the general plan, <br /> render the mandatory conjunctive in the statutory language a nullity. A fundamental principle of <br /> statutory construction is that "courts are bound to give effect to all parts of a statute, and that no clause, <br /> sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be <br /> legitimately found which will give force to and preserve all words of the statute." State v. Ganal, 81 <br /> Hawai' i 358, 372, 917 P.2d 370, 384 (1996) (citation omitted). Therefore, we hold that the county <br /> general plan does have the force and effect of law insofaz as the statute requires that a development <br /> within the SMA must be consistent with the genera] plan. <br /> There aze significant differences between the general policy guidelines evaluated in Protect Ala Wai and <br /> the specific land use plan contained within the ICMCP. Where consistency of a proposed development is <br /> evaluated with respect to broad, hortatory policy statements in a general plan, it may be azbitrary and <br /> capricious to base a denial on the general plan statement because of their broad and non-specific nature. <br /> This was the situation in Protect Ala Wai. The general plan for the city and county of Honolulu <br /> evaluated therein specifically stated that "[a]ll policy statements ...contained in this Plan are intended <br /> to serve as policy guidelines, as opposed to rigid requirements Contrarily, the KMCP's avowed <br /> purpose is to provide a relatively detailed scheme for implementing [the General Plan] objectives and <br /> policies relative to the Kihei-Makena region." The KMCP provides specifically, and this is not <br /> challenged by GATRI, that the subject parcel is intended for single-family residences. The Director's <br /> decision that GATRI's proposed snack baz was inconsistent with the KMCP did not meet any of the <br /> standards for reversal of an administrative agency decision under HRS § 91-14(g). Therefore, the circuit <br /> court erred in reversing the decision of the Director. <br /> Having made this determination, we necessarily overrule the second challenged proposition from Protect <br /> Ala Wai, namely that a proposed project is ep r se in conformity with the general plan if the project site <br /> was zoned prior to the adoption of the general plan and the proposed project is in accordance with the <br /> zoning. This proposition erroneously followed from the conclusion that the generai plan does not have <br /> the force and effect of law. It is incorrect because it ignores the statutory mandate that the proposed <br /> development must be consistent with both the general plan and the zoning. Consistency with the zoning <br /> alone is insufficient. <br /> It is unnecessary, as Protect Ala Wai appears to hold, for the county to rezone a parcel to conform to a <br /> change in the general plan in order to preempt the issuance of a SMA permit. The KMCP was adopted <br /> after extensive public input and enacted into law by the Maui County Council on July 17, 1985 as an <br /> amendment to section 2.80.050 of the Maui County Code. It is part of the general plan of Maui County. <br /> Therefore, it has the force and effect of law and a proposed development which is inconsistent with the <br /> KMCP may not be awarded an SMA permit without a plan amendment. Rezoning of the parcel is not <br /> necessary because the development must be consistent with both the general plan and the zoning. We <br /> therefore overrule Protect Ala W ai to the extent that it holds that a development in conformance with a <br /> http://www.hawaii.gov/jud/20385.htm 12/22/2006 <br /> <br />
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