2000-04-12 Charter Commission Minutes

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minutes 04-12-00Page 4 of 26 Charter and your proposed recommendations, you have a section that is dealing with the Planning Department and, I would assume, new language that is underscored is what you want to include, ‘the powers of the Planning Director with respect to subdivisions, zoning enforcement, variances or permits under the Zoning Code may be transferred to, or shared, with the Department of Public Works if so prescribed by ordinance’. And I would assume that ordinance would have to deal with the County Council having to come up with some kind of a legislative deal to so incorporate that, and then taken to the voters. However, the problem that I have with that, because I’ve made my fact known to the County Council, would be if we dealt with the Planning Department in by itself and the zoning, it is clear - it’s an undisputed fact, that this County, without the jurisdiction, and I’m only basing on the Planning, has no jurisdiction to re-zone our land. So, if you’re writing in your Charter that says this here’s going to effect everything else, that’s why our language, we believe, is appropriate, that because it’s an Attorney General Opinion back in ‘69 that made it clear to this county - in fact it was filed in this county and the decision was rendered in 72-21, that made it clear that this county does not have the right to re-zone Hawaiian home lands. So, if we were just to take that on its face, then this language would be everything except it wouldn’t deal with Hawaiian home lands, thereby our reasons for submitting this type of language. And if there’s anybody sitting on this County Charter that believes that the zoning laws apply, obviously it’s not because it’s there, and Virginia could attest to that. However, that is not why I’m here. I just happened to look at one of these, and within here was an example I thought I could be able to use to express to the members of this Commission that that’s why we believe the language that we submitted, or asked to submit, is consistent with what you’re trying to do and accomplish within your Charter. You’re trying to go through here, shift things around, and make it proper, and giving authority to other people. And in this case, I believe I read it just to say you’re giving authority not only to the - as long as ordinances is passed, that shared a transfer to the Department of Public Works. It sends a message to the Native Hawaiians that if it stands as it is, maybe Public Works now can come on our property and tell us what to do, which we believe is inconsistent and can’t be done based on these Opinions that have been there. So, that’s basically why I’m here, and again, I thank the Vice-Chairman and members of this committee, for allowing us at least come up with some language, a dialogue, that we can come forward and present to you, and I hope that my example I tried to show you was just to make some clarification in the body’s mind that this is where the Native Hawaiians have a problem. Among other things, but this was a clear example of trying to show a discrepancy so again, thank you very much. RAY: Thank you. Mr. Jim, you’ve got something to add? JIM: I’d just like to add a little. One of the things that Pat didn’t mention, and I’d like to address. First of all, the Hawaii Constitution, Article 12, which is the Hawaiian Affairs, it’s in your Constitution and it’s mandated by this Commissioners, or County Officers, or everyone, the State Officers, that they have to follow because it’s the law of the State. The problem that we had in the past, and probably in the future, is that when it comes up to changing the Charter, the problem we find they never include, or exclude, Article 12, Native Hawaiian Affairs. It is clear, by the Supreme Court decision, Cayetano vs. Rice, that the Native Hawaiians, by Statutes in the Constitution of Article 12, we are special class of Native Hawaiians, distinctly separate from the body political. In Article 1 and Article 8 of the Constitution, which is the county, local government, does not apply to Article 12. It’s not withstanding. It’s clearly identified by the Rice case, and the Ninth Circuit as well. Our position is that those facts has been there all the time, but it takes a Supreme Court to make it aware. Our position is very simple. We’d like this body here to address the issue of Hawaiian Affairs in your Charter. You’re in or you’re out. And it’s clearly identified – we’re separate, identified by your County Council. This last week your Corporate Counsel, clearly on television, letting everyone know for the first time they don’t have jurisdiction over Hawaiian home lands. That’s the Wal- Mart sewer system. So, our position is - it’s very simply we come before this body as Native Hawaiians. Please, we would like you to address the issue in your Charter to be clear. The law is clear. All you have to do is read Article 12. It clearly tells you. If you want a copy of the Supreme Court decision, we have the transcripts. Your attorney can get that. Clearly identifies we are a special class. We are separate, and the County have no jurisdiction and the State have no jurisdiction. It clearly made it cases that the Commissioners operate and manage Hawaiian home lands. And going over your Charter program, reading it, I find it never include Hawaiian home lands. It is the law of this State. Article 12 clearly tells you that you adopted it. Please don’t leave us out. Thank you. RAY: Questions for either Pat or Mr. Jim? George. MARTIN: For both gentlemen, actually. But in general, what you’re asking us, I see no problem with as long as the body can come with grips to what you’re saying. Again, a point of clarification. All we would do is put it on a ballot, and the people would then vote on it. Now, I do have a question in regards to if it were to pass, what happens to police and fire protection? What is your concept on that? JIM: Well, our concept is very clear, that your State - I call it police powers, your body legislation, they have the rights under the Constitution, Article 12, in Section 1, to amend the Act. It is clear that identification, that the County, like I mentioned the last time, in Section 220, has authority within Hawaiian homes. Right now, it’s to maintain the roads. It’s in your file://\\coh01\cohweb\council\charter_commission\minutes\minutes 04-12-00.htm7/1/2011