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 Richardson v.City&County of Honolulu,76 Hawai'i 46,66,868 P.2d 1193,1213.1994),(emphasis added;internal quotation marks omitted).Consequently,while the City's contention that its zoning authority is"concurrent"is somewhat true,any zoning ordinance enacted by the City may not actually conflict with the provisions in HRS chapter 205. Otherwise,the City is not authorized to so zone,and HRS§50-15 requires that we invalidate the ordinance.See Richardson,76 Hawai'i at 66,868 P.2d at 1213. X. The dual state and county land use designation approach is analogous to the requirement that property owners comply with both the county development plans and zoning ordinances.In GATRI v Blane,88 Hawai'i 108,962 P.2d 367(1998),this court addressed the consistency required between development plans and county-enacted zoning ordinances,both of which have the force and effect of law.Id.at 109,962 P.2d at 368.In GATRI,a general partnership(GATRI),desired to build a snack baron a parcel of land which was zoned for B-R Resort Commercial(allowing for construction of the snack shop),although the development plan called for single family(SF)use(not allowing for construction of the snack shop).Id.at 109,962 P.2d at 368. When the developer submitted a SMA permit application to the Maui County Planning Commission,the permit was denied,because,although the county zoning designation was proper,the snack shop was inconsistent with the county general plan.Id.at 109-10,962 R2d at 368-69.On appeal to the circuit court,GATRI argued that the decision of the Director of the Commission was erroneous because a development which is consistent with the governing zoning ordinance is per se consistent with the development plan,and thus,GATRI was entitled to the expanded list of uses permitted under the zoning ordinance,rather than the more restricted uses permitted under the development plan.Id.at 110,962 P.2d at 369. 18 The circuit court issued a judgment in favor of GATRI,which the Director appealed.'18 Id.at 110,962 P.2d at 369.In reviewing the appeal,this court determined that,because the development plan had the force and effect of law,"the development must be consistent with both the[development]plan and the zoning."Id.at 115,962 P.2d at 374. Because GATRI was subject to both the development plan as well as the zoning ordinance,GATRI was entitled only to the more restricted uses allowed by the development plan.See id. In HawaiTs land use system the legislature's statutory districts constitute more of a general scheme,and,presumably,by delegating authority to zone to the counties,the legislature intended that specific zoning be enacted at the county level.We believe that the"consistency doctrine"enunciated in Gatri is somewhat instructive in the instant case.Because the uses allowed in country zoning,are prohibited from conflicting with the uses allowed in a State agriculture district,only a more restricted use as between the two is authorized.By adopting a dual land use designation approach,the legislature envisioned that the counties would enact zoning ordinances that were somewhat different from,but not inconsistent with,the statutes. XI. While the counties are empowered to enact zoning ordinances,HRS chapter 205 clearly limits the permissible uses allowed within an agricultural district.HRS§205-4.5(b) states that"[u]ses not expressly permitted in subsection(a)shall be prohibited,except the uses permitted as provided in sections 205-6 and 205-8[.]"(Emphasis added.)Thus, any use permitted by a country designation not expressly permitted in HRS§205-4.5(a)or by virtue of HRS§§205-6 or 205-8(2001)[15]conflicts with the statutory regime. HRS§205-6 provides that: The county planning commission may permit certain unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified.Any person who desires to use the person's land within an agricultural or rural district other than for an agricultural or rural use,as the case may be, may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired. (Emphasis added.)However,we observe that the"reasonable and unusual"exception permitted by HRS§205-6 cannot be utilized to circumvent the essential purpose of the agricultural district.In Curtis,90 Hawai'i at 397,978 P.2d at 835,this court held that the"essential purpose[of HRS§205-6]...is to provide landowners relief in exceptional situations where the use desired would not change the essential characterof the district nor be inconsistent therewith."Id.(emphasis added)(citing Neighborhood Board No. 24(Waianae Coast)v.State Land Use Comm'n,64 Haw.265,639 P.2d 1097(1982)).Accordingly,while a landowner may request a permit for a use allowed by the country designation but prohibited in an agricultural district,such a permit is appropriate only in an"exceptional situation"that does not contravene the general purpose of an agricultural district.We have also concluded that an ordinance authorizing a zoning use more restrictive than that permitted under the statutory district,would not conflict with such a regime and thus is permissible.See discussion supra. XII. Plaintiffs argue that a permitted use under the City's county district exceeds the state agricultural district because it allows the use of a"dwelling,detached,one-family[,]"and requires no special permit for such use.HRS§205-4.5(a)(4)limits dwelling use to"[f]arm dwellings,employee housing,farm buildings,or activity or uses related to farming and animal husbandry[.]" 19 But in the instant case it is not evident that the development would conflict with the most restrictive use as between country zoning and the agricultural district.As noted*19 above,Obayashi contends that its development will fit within the permitted uses of an agricultural district.01 Moreover,Obayashi does not indicate it seeks a special permit for "reasonable and unusual"uses under HRS§205-6.As previously indicated,the City takes the position that issues as to the residential nature of the development"will be presented only at the time actual uses are proposed"and"permits are sought."Also,the City generally maintains that at the time of permitting or enforcement only the most restrictive uses would be authorized. Under the ripeness doctrine,a court should"reserve judgment upon a law pending concrete executive action to carry its policies into effect[.]"Bremner v.City&County of Honolulu,96 Hawai'i 134,144,28 P.3d 350,360(8pp.2001),,reconsideration denied,(July 5,2001),certiorari denied,(Aug.13,2001).On somewhat analogous grounds,this court has explained the principles of the ripeness doctrine in relation to administrative decisions,as follows: The need to avoid premature adjudication supports a definition of"dispute"that requires more than a"difference of opinion"as to policy.The rationale underlying the ripeness doctrine and the traditional reluctance of courts to apply injunctive and declaratory remedies to administrative determinations is"to prevent courts, through avoidance of premature adjudication,from entangling themselves in abstract disagreements over administrative policies,and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties." Grace Bus.Dev Corp.v.Kamikawa,92 Hawai'i 608,612,994 P.2d 540,544(2000)(quoting Abbott Labs.v.Gardner,387 U.S.136,148,87 S.Ct.1507,18 L.Ed.2d 681 (1967));see also League of Women Voters of Hawaii v Doi,57 Haw.213,214,552 P.2d 1392,1393(1976).(explaining,in relation to a request for a declaratory judgment,that this court was reluctant to"decide important questions regarding'the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case[.]"'(Citation omitted.)).Thus,"[p]rudential rules of judicial self-governance founded in concern about the proper—and properly limited—role of courts in a https://scholar.google.com/scholar_case?case=3834089830730945441&q=regulates+permissible+land+uses&hl=en&as_sdt=4,12 6/11