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Ho`omalu Hawaii's Testimony Regarding Bill No. 167 (Draft 2) or, in the Alternative, Bill No. 167 October 12, 2007 Page 2 of 4 because doing so both (a) permits "superstore" development elsewhere on the Big Island and ~ thus is contrary to the intent of the Original Proposed Ordinance, and (b) may prompt a state and federal constitutional challenge tinder the `equal protection' clause that is fully unnecessary and will divert attention away from the issues. We respectfully submit that this Council need not concern itself with whether an ordinance it passes will be deemed to apply to Hawaiian home lands. As discussed in our prior testimony, we believe that the only proper legal conclusion is that reasonable zoning ordinances are in fact applicable to commercial developments on Hawaiian home lands. As was ultimately conceded by opponerrts of the Original Proposed Ordinance at the last meeting, the Hawaii Supreme Court has not yet been asked to rule on this specific issue. Thereforq passage of the Original Proposed Ordinance will, if the director of the Department of Hawaiian Home Lands ("DAHI.'~ chooses to challenge the ordinance, bring this issue directly before the Hawaii Supreme Court for final resolution. We submit that such an appeal will ultimately fail. Regardless, the Original Proposed Ordinance will be effective to the broadest extent possible: If the director of DHHL is successful, the Original Proposed Ordinance will apply to all County lands except HawarTan home lands. If the director of DHHL is rmsuccessfut, the Original Proposed Ordinance will apply to all County lands, i>mluding Hawaiian home lands. In this way, the ordinance will simply have the same territorial effect as every other Hawaii County zoning law that this Council has passed since the adoption of the Hawaiian Homes Cmmm+~oa Act (the law creating DHHL and establishing Hawaiian home lands) as part of the Hawaii Constitution in 1959. Accordingly, the Council should pass the Original Proposed Ordinance and seek the broed~t possible application of tlu ordin~ce, reserving to the Hawaii Supreme Court the ultimate question of whether or not this zoning ordinance or any other reasonable zoning ordinance applies to commercial developments on Hawaiian home lands. We also note that, while the only publicly proposed "superstore" is planned for Hawaiian home lands, any "superstore" that is developed in Hawaii County -not merely those "superstores" located on Hawaiian home lands -will adversely impact the community. Section 1 of the Original Proposed Ordinance recites the purpose and the adverse impacts that are sought to be avoided by this ordinance. Specifically, The purpose of this ordinance is to preserve and protect the quality of life, natural beauty, and rural character of ovr unique island community from adverse impacts caused by large "superstores" that were not envisioned or considered under current provisions of the Hawaii Cou~y Zoning Code. The establishment of limits on retail use -through the restriction on opcration, renovation, or expansion of retail establishments that may be or become a "superstore" - proteets Hawaii County residents from the type of adverse impacts, such as traffic congestion, overburdening of existing Infrastructure, deterioration of fragile ecosystems, and decimation of small businesses, that have bcen occurring on the mainland United States. See Original Proposed Ordinance § I (emphasis added). BICKERTON • LEE DANG • SULLIVAN ? au.,AO 4llIL~A IeM ,I lrM,lLN11 Toper Financial Center, Fort Street Tower • 745 Fort Street, Suite 80l • Honolulu, Hawaii 96B I3 Phone: 808.5993811 Fax' 888.533.2467 Web: www.BSDS.<om