COM 0998.003 2006-2008 - Laserfiche WebLink

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Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 2 March 5, 2008 The most important reason to rezone the property to RA-5a is to limit the total amount of development to preserve some of the open space in the area. This would be much easier to do in a development of seven homes, as would be allowed under the RA-5a zoning, rather than fifty homes. There is also a concern about the potential for ocean water pollution from more intensive development of this coastal area. The rezoning to RA-5a would be more consistent with zoning to the north and south. North Kohala community members have repeatedly expressed the wish, embodied in two legislative resolutions, that coastal open space be preserved. While development could be limited even more than the proposed RA-5a, for example, by an RA-20a zoning that limited the development of the property to a single home, this would also have more drastic effect on the landowner's use of the property, and not be consistent with zoning to the north and south. This property was zoned A-5a prior to 1997, when it received a change of zone to RS-15. A condition of zoning limited development to 50 lots. Shortly thereafter, the Planning Commission also granted an SMA permit for the 50 lot project. The project was given five years to obtain final subdivision approval, with the possibility of a five year administrative time extension that could be given by the Planning Director. That time has expired. After the initiation of this rezoning to RA-5a, the landowner applied for time extensions on the RS-15 zoning, and on the SMA permit. The Planning Commission would have to decide on the time extension on the SMA permit. Legality The landowner's attorney has made some claims that the proposed downzoning is illegal. There is a simple answer: it isn't. It is ultimately up to the Council whether this property is zoned RA-5a, RS-15, or something different. Although there is a legal framework in which this decision is made, and a zoning decision can go too far in limiting a private owner's rights and become illegal, the proposed rezoning to RA-5a is well within legal bounds. The laws do not compel a decision either way. It is the Council's decision whether or not it is a good idea. But because these legal arguments have been raised, and accompanied by threats of suit, it is useful to briefly discuss the legal limits of zoning. Vested rights. Generally, laws and regulations affecting land use can be changed. So, for example, an ordinance may reduce the height limit for buildings in a certain area, and if an owner applies to build on a vacant property, the owner must comply with the new height limit. And through rezoning, the government has the power to change a