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 6 March 5, 2008 The landowner's attorney also mentions "substantive due process" but makes no argument how this would violate this legal theory. The legal citation is to a case that involves an allegation that the government acted because of racial bias. Personal Liability It is unfortunate that the landowner's attorney feels the need to make threats of legal liability against the councilmembers personally. To deal with this briefly: first, if the council does not violate the legal rights of the property owner, there is no basis for a suit. As explained above, a rezoning to RA-5a would not violate the landowner's legal rights. In addition, even if the legal rights were violated, councilmembers are not personally liable because they are absolutely immune from this type of suit when they take legislative actions. Boean v. Scott-Harris, 523 U.S. 44 (1998). Rezoning is a legislative action. Acierno v. Cloutier, 40 F.3d 597 (3d Cir. 1994); Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (11'hCir. 1993); Save Sunset Beach Coalition V. City and County of Honolulu. Procedure The landowner's attorney asks for a deferral on the grounds that the landowner's request for a time extension on the rezoning is still being considered by the Planning Commission. Now, the only reason this is still being considered by the Planning Commission is that the landowner's attorney is deliberately keeping it there instead of sending it to the Council, which has the final say. At the Planning Commission's January 11, 2008 meeting, the landowner's attorney asked the Planning Commission to defer action on their request to extend the time on the zoning. He could have asked the Planning Commission to vote on it, and whether the vote was positive or negative, he could have had this sent up to the Council at the same time as the request to rezone to RA-5a, because of the long time that this had been pending at the Planning Commission. The first Planning Commission meeting on this was July 20, 2007. So the fact that the time extension on the RS-15 zoning is at the Planning Commission while the RA-5a zoning is before the Council is the decision of the landowner's attorney. The argument that the Council should not act until the Planning Commission acts on the SMA permit time extension makes even less sense. Logically, the Council action on the zoning should precede the Planning Commission's action on the SMA permit. The Planning Commission can validly extend time on the SMA permit only if the Council grants the time extension on the zoning. The SMA permit depends upon the zoning.