COM 0998.007 2006-2008 - Laserfiche WebLink

Home

Steven S.C. Lim Carlsmith Ball LLP 121 Waianuenue Ave. P.O. Box 686 Hilo, Hawaii 96721 March 25, 2008 In Re: Kohala LLC Property Dear Steve, You have asked that I review certain documents, memoranda and correspondence in connection with the proposed development by Kohala LLC of a 50-lot single-family home development on a parcel containing approximately 37 acres in the County of Hawaii. I understand that the State Land Use Commission has classified the land in the urban district and the County has classified the land in the RS-15 Single Family Residential district, but that the County, at the insistence of the County Planning Director, may soon reclassify the parcel as RA-5a, Residential and Agricultural district. The result would be to reduce the number of allowable single-family lots from at least 501 to 7. I further understand that Kohala LLC purchased the subject parcel shortly after it was rezoned to its present classification, and that the parcel is being reclassified ostensibly because of the lapse - nearly 5 years ago - of a zoning condition requiring the landowner to obtain final subdivision approval for the proposed 50-lot residential development within five years of the said rezoning. Lastly, I further understand that the applicable plans for said parcel are virtually unchanged from the date - more than 10 years ago - that the County reclassified the parcel to its present zoning district, that the principle reasons given by the Planning Director (besides the lapse of the subdivision condition) have mainly to do with open space, view preservation and natural beauty, but that the County Planning Commission found that the proposed 50-lot development would "not have any adverse environmental or ecological effect" nor any "substantial adverse impacts on the surrounding area" and would in fact be "consistent with the objectives and policies of Chapter 205A, HRS, relating to Coastal Zone Management" during the course of evaluating - and granting - a request for a coastal zone special management area permit, also approximately 10 years ago. There are at least two principle problems with the proposed downzoning which decreases the allowable residential density by over 85%: the downzoning raises (1) serious partial regulatory taking issues under the 5`h Amendment to the U.S. Constitution, and (2) serious substantive due process of law issues under the 14`h Amendment to the U.S. Constitution. The documents you provided also indicate that the County's actions with respect to Kohala LLC may give rise to grave procedural due process issues under ' Although approximately 107 lots would be pemtined on the 38-acre property under RS-15 zoning, I understand that the actual pemnitted density under Ordinance 97-102 and SMAP No. 379 is 50 lots. EXHIBIT A