COM 0998.002 2006-2008 - Laserfiche WebLink

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Pete Hoffman, Chairman Hawaii County Council Angel, Pilago, Chairman Committee on Planning February 27 2008 Page 3 enforcement of the time condition for Final Subdivision Approval is demonstrated by the fact that the Planning Director allowed Kohala's "delinquency" to go unchecked for five years before retaliating with the proposed downzoning. Condition C of Ord. 97-102 required Final Subdivision Approval to be obtained within five years, i.e., by July 14, 2002. However, for the five years following this "deadline" the Planning Director was content to leave the zoning in place, consistent with the Planning Department's custom and policy toward zoning ordinance time limitations. Suddenly, in May 2007 Kohala drew the short straw, possibly as a result of our telephone contact with the Planning Department in preparation for submittal of Kohala's annual report. Since that time Kohala has been the victim of an unreasonable and singular attack. Kohala's repeated attempts to negotiate a workable solution have been rebuffed, and the entire matter has been fraught with procedural irregularities, such as inadequate public notice, untimely notice from the Planning Director to Kohala and arbitrary scheduling of Planning Commission hearings. These issues have been documented elsewhere and Kohala can provide the Council copies if desired.2 The Planning Director supports his argument in favor of the downzoning by pointing to the General Plan. However, Ord. 97-102 is consistent with the General Plan and the Planning Director does not have the authority to re-write the General Plan to further his goal of downzoning the Subject Property. The General Plan is adopted by ordinance passed by the Council. See County Charter, § 3-15. Once adopted, the General Plan has the force and effect of law. Gatri v. Blane, 88 Hawaii 108, 114 (1998). Therefore the Planning Director's attempt to downzone the Subject Property based on a false interpretation of the General Plan is ultra vires and sufficiently arbitrary to amount to a violation of substantive due process. Actions taken without legal authority violate substantive due process. See Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2nd. 2007) (holding plaintiffs entitled to bring a substantive due process claim under 42 U.S.C. § 1983 because Town Board action was not specifically authorized under its zoning code). Ord. 97-102 was consistent with the 1989 General Plan. In 2005 the General Plan was amended, but there were no changes relevant to the Subject Property, thus Ord. 97-102 remains consistent with the General Plan. The Planning Director argues that the goals and policies of the Natural Beauty element of the General Plan support the downzoning. What he fails to acknowledge is the General Plan's Natural Beauty goals and policies are the same today as they were at the enactment of Ord. 97-102. In addition, the LUPAG designations for the Subject Property have not changed, despite the 2005 General Plan amendment that changed the LUPAG designation on adjacent property. In other words, despite the comprehensive legislative process that resulted in the current General Plan, there have been no changes relative to the z See July 20, 1007, Letter to Planning Commission; December 7, 2007 Letter to Planning Commission; January 9, 2008 Memorandum in Opposition to Planning Director Initiated Change of Zone, Repeal of Ordinance No. 97-102 and Revocation of SMA Permit No. 379 and In Support of Applicant Requested Amendment to Condition C of Ordinance No. 97-102 and Condition 4 of SMA Permit No. 79; February 1, 2009 Letter to Hawaii County Clerk.