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HomeMy WebLinkAboutCOM 1437.004 1984-1988 '`OJN��of ... .. 1 DANTE K. CARPENTER i'�;; /J,�;* JOHN A. WAGNER MAYOR _ CORPORATION COUNSEL .o. —� . TELEPHONE NO. (808)961-8251 8r9TF OFHP�P COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTRE 101 AUPUNI STREET,SUITE 325 HILO,HI 96720 April 18, 1988 Honorable Takashi Domingo Chairman, Committee on Planning County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr . Domingo: Re: Amendments to Chapter 25 (Zoning Code) Hawaii Redevelopment Agency You have asked for comments regarding Bill Nos. 467 (Draft 2) and 511 which would create a Downtown Hilo Design Review Commission to advise the Hawaii Redevelopment Agency (HRA) and the Planning Department on all matters involving construction, rehabilitation, and redevelopment activities in the downtown Hilo commercial zoning district (CDH) . Answer: For the reasons stated below, we conclude that the provisions in Bill Nos. 467 (Draft 2) and 511 which create a Downtown Hilo Design Review Commission are in conflict with Chapter 53, Hawaii Revised Statutes, and are therefore illegal and void. Chapter 53, HRS, is the enabling statute which authorizes the establishment of redevelopment agencies, and sets forth the specific powers and duties of these agencies. Through Chapter 53, HRS, the legislature conferred upon these redevelopment agencies broad powers to formulate and implement their redevelopment plans . Specifically, under §53-5 (1) , redevelopment agencies are authorized to undertake and carry out urban renewal projects and related activities and to Oomrn. No. /'M 7 i4 ale No. Hee znl Ref. To: p .) Ref. Date_MAY 89 " Honorable Takashi Domingo Page 2 April 18, 1988 exercise all powers necessary, incidental, or convenient to carry out and effectuate their purposes. Under §53-5 (2) , redevelopment agencies are authorized to make, amend, and repeal rules and regulations to carry into effect their powers and purposes. Pursuant to Chapter 53, the County Council established the HRA which then drafted the Downtown Hilo Redevelopment Plan (DHRP) . The DHRP was approved by the Planning Commission in September 1983 and approved by the Council in February 1985. Section V.B. of the DHRP sets out the procedures to be followed by the HRA to carry out the DHRP: "2. Maintenance andImplementation- of- this Plan The implementation of the Redevelopment Plan will remain the general responsibility of HRA. The implementation of specific proposals rest with HRA and other state and County agencies. HRA' s efforts where it has no direct responsibilities would be to encourage and coordinate the efforts of these other agencies. In some cases, HRA may provide supplementary funding to these agencies as an aid to implementation. 3. Plan- Approval - Process HRA plan approval based on this Plan will. be required as part of the zoning plan approval process, the shoreline management area (SMA) permit process, and the building and demolition permit process for all such actions occurring within the redevelopment area. As a further criteria for its plan approval, HRA shall adopt rules as it requires, including but not limited to- urban design rules. " The HRA has adopted Rule 6, the Downtown Hilo Urban Design Rules, the general purpose of which is the implementation of the goals and objectives of the DHRP. The specific purpose of Rule 6 is to provide detailed design guidelines in order to preserve downtown Hilo' s character and provide for its protection and enhancement; however, the principles in Rule 6 shall not be applied so as to prevent a permitted use from locating in downtown Hilo. Part 8 of Rule 6 is entitled Plan Review by Agency. This provision states that " [t] he Agency (HRA) shall review all construction and reconstruction plans for Downtown Hilo and Honorable Takashi Domingo Page 3 April 18, 1988 determine whether they conform to the objectives of the Urban Design rules. The determination of the Agency will be based upon all written data presented to or requested by the Agency and oral data offered during the Agency' s monthly public meetings. " By enacting Chapter 53, the Urban Renewal Law, the legislature gave all redevelopment agencies broad powers to formulate and implement their own redevelopment plans and to adopt rules and regulations to carry out those plans. Following its creation, the HRA drew up its redevelopment plan, the DHRP, and adopted rules and regulations to implement that plan. Section V.B. 3. of the DHRP specifically authorizes the HRA to approve projects located in the CDH zoning district using HRA Rule 6 as its guideline for project approval. Bill Nos. 467 (Draft 2) and 511 would be in conflict with Chapter 53, HRS, because they would take away the HRA' s authority to approve projects located within the CDH zoning district and leave the HRA in an advisory capacity to the Downtown Hilo Design Review Commission and the Planning Department. ' A municipal ordinance will be declared void if it is in conflict with a statute. An ordinance may not prohibit what a state; law permits. Rhyne, Municipal Law, §9-10. Bill Nos. 467 (Draft 2) and 511 would also eliminate the appeal to circuit court from an HRA contested hearing which would also conflict with Chapter 53 , HRS. Section 53-5 (2) , HRS, requires that all rules and regulations adopted by redevelopment agencies be subject to Chapter 91, HRS, the Administrative Procedures Act. Under HRA Rule 6, Part 9, a person aggrieved by a determination of the HRA has a right to request a contested case hearing. The contested case hearing is conducted; in accordance with HRA' s Rule No. 5 which complies with Chapter 91, HRS. Any person aggrieved by a final decision and order in' a contested case is entitled to appeal the decision to the circuit court. The council cannot by ordinance eliminate this right of appeal. Finally, Bill Nos. 467 (Draft 2) and 511 state that the Downtown Hilo Design Review Commission' s review and recommendations shall be in accordance with the DHRP and with HRA's Rule 6. The DHRP and HRA' s Rule 6 were drafted and adopted by the HRA pursuant to the powers granted to the HRA by the legislature under Chapter 53. The Downtown Hilo Design Review Commission would have no authority to use, as a guideline for review, a development plan and rules and regulations drafted and adopted by another agency pursuant to a state statute. Honorable Takashi Domingo Page 4 April 18, 1988 HRA' s manager, Gordon Nobriga, has stated that the HRA members are considering having HRA relinquish its approval authority so that the current problem can be resolved. This seems to be the only reasonable solution to the problem involving HRA project approval and the appeal of a contested case hearing to circuit court. It will be proposed that HRA act in an advisory capacity to the Planning Department which would be the only agency authorized to approve plans in the CDH zoning district. HRA would review and comment on plans and projects and, submit those comments to the Planning Department for its consideration. Although HRA currently has approval authority, it has, so far, not used that authority to disapprove any plans or projects. The HRA would be able to relinquish its approval authority because it would be entirely within HRA' s discretion what powers granted to it under Chapter 53 it would and would not exercise. Since HRA would not have approval authority, there would be no appeal to the circuit court because there would be no decision to be made by HRA from which such an appeal would arise. By giving up approval authority, HRA would take itself out of the Chapter 91 contested case hearing and appeal process. Implementing a review and comment process for HRA in place of the current review and approval process would involve minor amendments to the DHRP and HRA' s rules. DHRP section V.B. , Redevelopment Plan Procedures, subsection 3, Plan Approval Process, would need to be amended to change HRA plan approval to HRA plan review. Similarly, Bill No. 467 would have to be amended to change the following sections: "Section 25-281. Height Limits. The height limits in the CDH district shall be 120 feet; provided that all developments over 45 feet shall be subject to HRA [approval. ] review. Section 25-285. Other Regulations. (b) All new construction, rehabilitation and redevelopment projects in the CDH district shall be presented to the Hawaii Redevelopment Agency (HRA) for review and [approval] comment in accordance with the Downtown Hilo Redevelopment Plan and HRA' s Downtown Hilo Urban Design Rules. Upon receipt of an application for plan approval for structures and uses in the CDH district, the Planning Director shall so notify the HRA. " Honorable Takashi Domingo Page 5 April 18, 1988 Under this proposal, the Planning Department would have exclusive approval authority and any appeal from a decision by the Planning Department would be appealed to the Board of Appeals. Very truly yours, A' ER rporation Counse GHS:jn