COM 0998.007 2006-2008 - Laserfiche WebLink

Home

Honorable Angel Pilago, Chair April 7, 2008 Page 4 C. The Planning Director's Background Report insinuates that the Downzoning will somehow be more consistent with the Natural Beauty goals under the 2005 General Plan. The General Plan's Natural Beauty goals are exactly the same today as they were when Ord. 97-102 was enacted. The same can be said for the Natural Beauty Standards. The Natural Beauty policies are almost identical today as they were in 1997, and the minor changes cannot fairly be called significant, especially in light of the overall maintenance of the entire Natural Beauty section. 111. Procedural Due Process and Equal Protection The Council may not pass laws without following proper procedures. Alarmingly, from the start, the Downzoning has been pushed along with less than scrupulous regard for public notice or landowner notice requirements. These issues are set forth more fully in my letter to the Planning Commission dated December 7, 2007, and to County Clerk Jarman, dated February 1, 2008, copies of which are enclosed herein as Exhibits D and E respectively. Procedural irregularities give rise to Kohala's claim that its rights to procedural due process have been violated. Uneven application of County procedures and disregard of Kohala's numerous attempts to find a workable solution to address the Planning Director's concerns, raise questions over whether Kohala is being provided equal protection under the laws. Despite its strong legal position, Kohala remains open to working with the County to find a legal and fair way of addressing the concerns raised in the Planning Director's Background Reports. Kohala has offered to voluntarily bring its permitted lot count from 50 to 25. To date, Kohala's attempts have been rebuffed, strengthening its belief that the Downzoning is not a fair and rational legislative action, but rather an irrational, isolated and targeted attack. IV. Non-Compliance with Haw. Rev. Stat. § 343 Requirements By the Planning Director's own words, an environmental assessment must be prepared prior to this proposed Downzoning. Therefore, the Downzoning cannot be enacted until an EA/EIS is conducted. See Planning Director's memorandum to County of Hawaii staff dated October 3, 2007, enclosed herein as Exhibit F. The Planning Director's memorandum states that: [A] rezoning or a county council state land use boundary amendment is not the type of approval that will create the need for an EA, because state law defines the EA trigger as an "agency action", and the county council is not an "agency" under Chap. 343. It is not part of the executive branch of government. However, a rezoning is almost invariably followed by a subdivision or plan approval, which is an "agency action." Because Chap. 343 says that an EA should be done at the earliest practicable time, if a rezoning has a "trigger" for an EA, and if it is