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Page 1 of 2 <br /> Murashige, Laura <br /> From: Charles Flaherty [oneheart@aloha.net] <br /> Sent: Friday, October 12, 2007 10:42 PM <br /> To: counciltestimony@co.hawaii.hi.us <br /> r, <br /> Cc: Ford, Brenda; Hoffmann, Pete; Ikeda, Donald; Jacobson, Bob; Higa, Stacy; Naeole, Emily; Pilago, <br /> K. Angel; Yagong, Dominic; Yoshimoto, J <br /> Subject: Further testimony on Bill 167 <br /> Aloha mai members of the County Council, <br /> I have read through Kepo'o v. Watson, 87 Haw. 91 (http://wwwstate.hi.us/jud/23702,htm) and do not <br /> agree with Mr. Yuen's analysis (see below) that this Supreme Court decision prevents the county from <br /> regulating commercial and industrial leases/uses of DHHL properties. Actually, it seems that this case <br /> supports such county regulation. <br /> The MOU between the County and DHHL is legally non-binding. The county administration is using <br /> administrative legal opinions, rather than actual legal precedent to azgue that the County cannot regulate <br /> commercial and industrial leases of DHHL property. <br /> I sent testimony to you that stated "Native Hawaiian Legal Corporation has filed a lawsuit to challenge the state's <br /> failure to adequately fund the Hawaiian Homes Program, as it pledged to do as a condition of statehood. Instead, <br /> the Hawaiian Homes Commission is embarking on a program to commercially lease its trust lands to raise <br /> revenue, in contravention of the specific constitutional provisions under Art. XII, sec. 1 requiring the Legislature <br /> to provide "sufficient sums" to the DHHL for all of its operations." <br /> While I'm not an attorney, I would still argue the following using Kepo'o v Watson, Sections X-XII: <br /> Historically, zoning has been connected to the common laws of nuisance and trespass so that one <br /> <br /> property owner did not use his land to harm others. Zoning better identifies a private property owner's <br /> right to defend against nuisance, and thereby promotes the general health, safety and welfaze of the <br /> <br /> public. Therefore, zoning is a police power. <br /> Micah Kane, Director of DHHL, former Director of the state Republican Party, and former government liaison for <br /> <br /> the Building Industry Association, is arguing that DHHL needs commercial leases to fund development of <br /> residential leases/homes. This azgument ignores the fact that the state constitution requires the legislature to fund <br /> development of homes. Therefore, funding by commerciaUindustrial leases is only incidental and not significant <br /> <br /> to the constitutional mandate that requires funding by the legislature. Certainly, this issue will be further clarified <br /> by the NHLC lawsuit. <br /> In Kepo'o v_. Watson, the state Supreme Court affirmed that "police power regulations apply to Hawaiian <br /> <br /> home lands, and executive officials may enforce them, as long as these regulations do not significantly <br /> affect the land." <br /> Therefore, I would argue that 1) DHHL is subject to county zoning, except for DHHL residential and <br /> agricultural leases, and 2) Council member Pilago's amendment is constitutional, especially if it were <br /> applied to all property within the county. <br /> Mahalo, <br /> Charles Flaherty <br /> Comm. No. 3 2 • ~~w3~ <br /> 1 <br /> Ref. To: J~.:r,--~_ i~ 7 [UUf <br /> Rif. Date 'UST <br /> 10/15/2007 <br /> <br />