2024-03-06 PL-SMA-2023-000046 Claudia Rohr Opposition Testimony (2)

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1/28/24,3:08 PM Save Sunset Beach Coalition v.City and County of Honolulu,78 P.3d 1 -Haw:Supreme Court 2003-Google Scholar legislative acts of the city council,...and as such they are entitled to a presumption of validity."Id.at 190,767 P.2d at 822(citations omitted).Accordingly,the"challenger of the ordinance bears the burden of showing that it is arbitrary,unreasonable or invalid."Id.(citations omitted). In Lam Yip Kee this court did not reach the City's appeal of the second ordinance and did not address whether the zoning change was subject to the same standard accorded 10 to amendment of the development plan.Id.•10 Although an amendment to a development plan differs from a zoning ordinance,see id.at 191 n.13,767 P.2d at 823 n.13("We note at the outset that the ordinance challenged by Lum Yip Kee is not a zoning'ordinance.Rather,the ordinance in question amended the development plan to change the land use designation[.]"),both types of ordinances"predetermine[]what the law shall be for the regulation of future cases falling under its provisions[,]"Life of the Land,61 Haw.at 423,606 P.2d at 887,rather than merely"execute[]or administer[]a law already in existence[,]"id.at 424,606 P.2d at 887.Accordingly,we conclude that a zoning ordinance is a legislative act and is subject to the deference given legislative acts.Accord J.Juergensmeyer&T.Roberts,Land Use Planning and Control Law 188(1998) ("Most states treat all zoning changes,whether general or site-specific,as legislative acts and accord them a presumption of validity.");D.Callies,Regulating Paradise:Land Use Controls in Hawaii 34(1984)(explaining that"most courts regard the rezoning process as legislative"). IV. Plaintiffs's second argument on appeal is that Article XI,section 3 of the Hawai'i State Constitution required an affirmative two-thirds vote of the City Council to pass Bill Number 88,rather than the majority 5-to-4 vote taken.See Charter§3-107.1(stating that"except as otherwise provided,the affirmative vote of a majority of the entire membership shall be necessary to take any action").Article XI,section 3 states that [t]he State shall conserve and protect agricultural lands,promote diversified agriculture,increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.The legislature shall provide standards and criteria to accomplish the foregoing. Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action. (Emphases added.)Emphasizing the words"approved by a two-thirds vote of the body responsible[,]"Plaintiffs argue that court erred in holding that bill number 88 was approved.Z0 We review questions of constitutional law de novo,under a right/wrong standard.United Public Workers Local 646 v.Yogi,101 Hawaii 46,43,62 P.3d 189,192 .(2002)(citing Bank of Hawaii v.Kunimoto 91 Hawai'i 372,387,984 P.2d 1198,1213,reconsideration denied,91 Hawai'i 372,184 P.2d 1198(1999)).Also, [i]n interpreting a constitutional provision,"the words of the constitution are presumed to be used in their natural sense...'unless the context furnishes some ground to control,qualify or enlarge(them).`State ex rel.Amemiya v Anderson,56 Haw.566,577,545 P.2d 1175,1182(1976).(citation omitted). "We have long recognized that the Hawai'i Constitution must be construed with due regard to the intent of the framers and the people adopting it,and the fundamental principle in interpreting a constitutional principle is to give effect to that intent."Convention Center Auth.v Anzai 78 Hawai'i 157 167 890 P.2d 1197 1207(1995)."This intent is to be found in the instrument itself.When the text of a constitutional provision is not ambiguous,the court,in construing it,is not at liberty to search for its meaning beyond the instrument."State v.Kahlbaun,64 Haw.197,201,638 P.2d 309,314,recon.denied,64 Haw.197,638 P.2d 309 .(1981)(citations omitted). Id.at 192-93,62 P.3d at 192-93(emphases added). A. 11 In upholding the City Council vote,the court held that the two-thirds vote mandate*11 was not operative because Article XI,section 3 was not self-executing and legislation necessary to implement it had not been adopted.In State v.Rodrigues,63 Haw.412,414,629 P.2d 1111,1113(1981),this court established that a constitutional provision is self-executing when it establishes"a sufficient rule by means of which the right given may be enjoyed and protected,or the duty imposed may be enforced[.]"(quoting Davis v. Burke,179 U.S.399,403,21 S.Ct.210,45 L.Ed.249(1900)).Conversely,a provision is not self-executing when it"merely indicates principles,without laying down rules by means of which those principles may be given the force of law."Id. In Rodrigues,three defendants were indicted by grand juries.None of the juries were assigned an independent counsel to advise it.63 Haw.at 413-14,629 P.2d at 1112-13. The defendants were convicted,and their appeals were consolidated.Defendants maintained that Article I,section 11 of the Hawai'i State Constitution,which provided that" [w]henever a grand jury is impaneled,there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it"(emphasis added),was self-executing,and,thus,their indictments were obtained in violation of this provision,and should be dismissed,Rodrigues,63 Haw.at 414, 629 P.2d at 1113. On appeal,this court determined that Article I,section 11 was not self-executing.Id.at 416,629 P.2d at 1115.It was held that the mere adoption of the constitutional amendment creating the position of the independent counsel was not sufficient,but that further legislative action was necessary to implement it.Id.at 415,629 R2d at 1115. Therefore,Rodrigues concluded that,until such legislation was enacted,the presence of the independent grand jury counsel in grand jury proceedings was not required.Id.at 416,629 P.2d at 1114-15.Consequently,this court concluded that Article I,Section 11 of the Hawai'i Constitution was not effective as to any defendant,and the trial court's denial of the motion to dismiss was proper.Id.at 418,629 P.2d at 1115;see also State v Pendergrass,63 Haw.633,634,633 P.2d 1113,1114-15(1981),(discussing State v. Rodrigues in connection with the principle that"the mere adoption of the constitutional amendment...was not enough to make the provision operative....[F]urther legislative action was necessary to implement this constitutional provision"). B. Read as a whole,Article III,Section 3 calls for future action to be taken by the legislature.The first sentence of section 3 sets out a mandate with respect to the preservation of agricultural lands.The text then imposes a duty on the legislature to"provide standards and criteria to accomplish the foregoing[mandate]."The directive to"provide standards and criteria"indicates a duty arising on the effective date of the provision.Indeed,Plaintiffs concede the duty to provide such standards relates to future action.Because the provision calls for future action it negates the inference that any standards then in existence were incorporated by the amendment. The last sentence of Section 3 confirms that the identification of important lands was to follow the adoption by the legislature of such standards.According to that sentence, such identification was necessary"to fulfill the purposes[described]above[.]"The word"above"refers to the mandate contained in the first sentence that is imposed prospectively.Hence,the sentence signals that identification was to be accomplished in the future.Also,the last sentence instructs that reclassification or rezoning of the "lands identified""shall not"occur"without meeting the standards and criteria established by the legislature[.]"Plainly this means the"standard and criteria"in the second sentence were to be adopted by the legislature after the amendment became effective. https://scholar.google.com/scholar_case?case=3834089830730945441&q=regulates+permissible+land+uses&hl=en&as_sdt=4,12 3/11