COM 0998.003 2006-2008 - Laserfiche WebLink

Home

Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 3 March 5, 2008 landowner's zoning to a less intensive use. The law recognizes, however, that land development proceeds in stages, and that after a certain point, the owner should be allowed to complete a project as planned, and be protected from changes. The term normally used is that the owner has "vested rights" to proceed with a development. In Hawai'i land use law, the developer has "vested rights" when there is no further discretionary action required for the project to proceed, and the owner has expended substantial amounts in reliance upon that final discretionary action. Kauai County v. Pacific Standard Life Ins. Co., 65 Haw. 318 (1982). The "discretionary action" is a key concept. It means a permit or other approval that requires the decisionmaker to exercise judgment ("discretion") in deciding whether or not to issue the permit or approval. In a discretionary action, the decisionmaker must weigh a number of factors against broad standards given by the law. The other type of permit, in contrast to a discretionary permit, is a "ministerial" permit: one where the factors leading to a decision are described with such precision that nothing is left to discretion, where the duty to act is absolute, clear, and imperative, 63C Am.Jur. 2d Public Officers sec. 325, and where the only requirement to proceed is that a public officer process an application for compliance with all applicable statutes, ordinances, rules, and regulations, and the conditions attached to such approvals. Life of the Land v. City and County of Honolulu, 61 Haw. 390 (1979). A ministerial action will have precise, fixed standards. A building permit is a typical example of a ministerial permit. The Building Code sets out minimum requirements for a building, such as the spacing of floor joists, the required window area, the width of doorways, and the like. If the building meets these minimum requirements, the building official reviewing the permit has no discretion to refuse to issue the permit. In land use law, the ministerial approvals, such as building permits and driveway permits, typically follow the discretionary approvals, such as a rezoning. A change of zone, or an amendment to an existing zoning is a legislative act, Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465 (2003). It is discretionary (as are all legislative acts) because the decisionmaker-the County Council-must use its judgment in deciding whether or not to approve the rezoning or the proposed amendment. Kohala LLC has no vested rights to proceed with its development under RS-15 zoning because the time conditions to perform on that zoning have lapsed. It needs several