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Home My WebLink AboutCOM 0704.029 1998-2000 JUI~ 81 '~0 11~14AM BAYS DEAFER F-IATT~i= 6E8-5~~-416'4 F.1~~ BAY5 16th Floor - Alii Place DEAVER 1099 Alakea Stre®t Honolulu, Hawaii 96813 HlATT LUNG P.O. Box 1760 Honolulu, Hawaii 96806 ROSE i ol9phone: (808) 523-9000 Facsimile: (808) 533-4184 FACSIMILE TRANSMITTAL DATE: June 1, 2000 BDHLR MATTER ID: ~.?,14-001 TIME: 11:01 AM TO: The Hon. Bobby Jean Leithead-Todd FAX NO.: 808 961-°9 Chair, Planning Committee FROM: A. Bernard Bays, Esq. SENDING 7 PAGES, {INCLUDING-, TRANSPvii! I'AL) RE: The Villages of Aina Le'a REMARKS/DESCRIPTION OF DOCUMENT(S) TRANSMITTED: Letter dated June 1, 2000 from Mr. Bays to Ms. Leithead-Todd. If you do not receive al! pages or if they are illegible, please call Edna at (808) :~?3-9000. We are sending from an automatic facsimile machine which is available to receive ors ~ ~~~-hour per day basis. Original/copy ? will be mailed to you. ® will not be mailed to you. CONFIDENTIALITY. The information contained in this fax message is intended only for the personal and confidential use of the designatEd Reoipient(8} named above. This message may be an attorney-client communication and, as such, is privileged and confidential. If the r®ader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, the reader is hereby notified that you have received this document in error, and that any review, dissemination, distrib~~tic:n or copying of this message is strictly prohibited. If you have received this communication in error, plea8e notify u8 immediately by t~lephone and return the original r„aecana and all cnniaS to us by mail in a sealed envelope. Thank you for your as~i$tance. _ . C,ornm. No, -I X4.02.°1 File No. ~-NGc- 1, ei. ~a,~~_ JUN 81 ll~15AM EAY'8 LEAVER HIATTic 888-5~~8-4184 F.ci- K~~T~ 16ih Ficor • ~~lu flare f:a~.~ 11ac,iani i~. K Phj~~: lJ 1099 Rle'~ea S;re' P.,.'1 ~ I.:`ea~er brace G `;cfis Nonululu, Hvu; ili 9G9'.; err: '.1 Hi1L' I?tlu't;rdf Go,`~in DE~i~rER ~u_,:~:,, L~a~:~t_emw~~ P~0.3ox l?60 C-sl~,~~ IC Hose Cra`gP~w'agnild K~A~ ~ Nonolul:: Hauai y6SU6 - ~i ~ 6ah~, R~.rael G~ dcl C:u: i;c ti' ~'~ia~?s Kim a. TcirE~~ j~ l~el~~ (803) S^.5-9000 I. ~ie~.,~ti El:zahe.`~A.C Tr.e~:,,~;. L V 1 v~G i~as (8~~`3) Si.',.~Ivy Lisa?,~!;~~r,a,an CF~ i:~cia:!~~ .~t:i~lrCa;ah.;~.-net ~ ~ r~'~~~, rf BzCsr I ;DCnson RASE a-~`7Si:C uuuhAh~rccc~ ~ ' ~i~n, Anornevs al Law June 1, zoao Via facsimile 808 9b1-8912 The Hon. Bobby Jean Leithead-Todd Chair, Planning Committee 25 Aupuni Street Hilo, Hawaii 96720 Re: The Villages ofAina Le'a Dear Chairperson Leithead-Todd: I am enclosing for your reference a brief of Life of the Ladd, Inc. CitS~ Council of the Ciry and County of I-Ionolulu, 62 Haw. 390, 606 P.2d 866 (1980), which addresses the specific issue of what constitutes a '`non-legislative" act of the council. I hope the information contained in the memo is of some help to you, If you have any questions or wish to discuss this, please give me a call. Sincerely, BAYS, DEAVER, HIATT, LU:~'~ ROSE A. Bet~nard Says Attorney at Law, A La~~ Cor~aration Its General Partner ABB/LLB/esc Enclosure 11CLARK1Word F'~IeslBricge•Alne Le'~1leiters106-01-00 Leftread-ToddZ.doc lii; Is;nna Cif;ce: Suit 30~: • i'~u'~er qu_ae • GS-13-9 nawaih,k hur.C ~ ;C~u~u?la. `?aw:u~. ;6'h3 • Te'' ;e0s1) 8F,j-3;QC ~ c. . R?5 6'(» JL'~~ ~1 '~0 11 ~ 151=~M E'AYS DEF~VER F-'~I1=+TTic ~~~'~-~~~-41E4 F. Ali- Memorandum ABB; LLB From: Mme{ /l,~-(S~, dare. June 1, 2000 Subject Bridge - Aina Le' a The following is a brief of Life of the Land, Inc. v. City CouA~cil op._ f_ City and County of Honolulu, bl Haw. 390, 606 P.2d 866 (1980. Per your request, I have limited the facts, issues, and holding of the case and the court's analysis to the specific issue of determining what constitutes a "non-legislative" (i.e. "diseretionG~n'" act by the City Council. LIFE OF THE I.AND~ Ixc. V. CITY COUNCIL OF CITY A~'D COU~iTI' OF HO"d~I.,~;LU I. F~c~rs On August 22, 1975, the First United Methodist Church (o~~~~cr of the land) entered into a development agreement ~~ith The Victoria Partnership ar,.d The Admiral Thomas Venture ("Developers") for the building of the "Admiral Thomas," a proposed high rise building consisting of residential apartments (to be sold as condominiums) and parking stalls. The proposed location was the easterly sislc, of Victoria Street between Kinau Street and Heretania Street, directly across the ~Ionolulu Academy of Arts and cattycorner from Thomas Square. At that time, the p;:oject site was located within an area zoned as Apartment District A-4 under the Compreh~'~s.ve Zoning Code ("CZC"). Under such zoning, the Developers were permitted to build h i.`h density multiple family dwellings up to 350 feet high with a total floor area of 309, 1`~'G square feet. On January 23, 197b, the City Council ("Council") enacted ar~~inance No. 4551 ("Kakaako Ordinance'') for the purpose of providing a vehicle to control development in the area pending the Council's determination of development policies and plans for the Kakaako area. Under the Kakaako Ordinance, the Btulding Department was prohibited from accepting applications for permits for building constr.~ct;on in the Kakaako area during an interim period. In order to avoid any undue hardships potentially caused by the Kmkaako Ordinance, the Council retained under section IV-~~ o F the Kakaako Ordinance the discretionary power to vary or modify the application of any provision thereof upon determining that such change was consistent with the {~~C, General Plan, Detailed Land Use Map, Development Plan and the health, s~.~~ty, morals, and general welfare of the City and County of Honolulu, On July 11, 1977, the Developers filed their application for ~~a~7ance or modification pursuant to section IV•A of the Kakaako Ordinance. While the Developers' proposal was permissible under the CZC, the Kakaako Ordinance prevente~,'. ~1, BAYS ' BEAVER ~ WATT ' LL~~G ' ROSE Attorneys ac ~aw- JUN ei 11=16AM SAYS ~EA~'EF hIATT~c 8G8-~~~~-4184 F'.4~~ To: ABB; LL8 From; MATC Dated: June 1.2000 Re: Bridge - Aina Le'a Page: 2 Developers from obtaining the necessary building permit. The City Clerk ra'"e,-red the Developers' application to the Department of Land Utilization ("DLU") for their report and recommendation to the Council. DLU reported to the Council that tic ~'~::z~elopers' building proposal conformed to the CZC, however, it recommended denying rile application due to the adverse visual Impact the building's reflective glass t~4', ~r would have on the surroundings, and the fact that the structure would not meet ttac ;tei.ght limitation of a proposed ordinance. The Planning and Zoning Committee ("PZC") subcommittee. on Kaka~ko reviewed the DLU's report and recommendation on the Developers' application alld after considering the Developers' response to the DLCS report, referred the matter.' to the Office of Council Services (`°OCS") for further evaluation. The OCS concluded t',a~a c.he Developers' application complied with the General Plan and all other applic~~~hle laws and regulations. OCS recommended approval of the Developers' application v,~ish the following conditions: (1) modification ofthe glass tower; (2) submission of pr~jeet designs for approval by the Director of the DLU; and (3) all approved landscaping and planting requirements be completed before issuance of the Certificate of Occupancy. OCS' recommendation was eventually reported to the Council who approved ;he Developers' application including the three conditions mentioned in the CC`s ; eport on September 21, 1977. The Council's approval of the Developers' application gene,~~lcd community criticism that centered on the bulk and height of the proposed l7lsilcling. In response, an ad hoc committee was formed to address the community's cone-erns. Several meetings were held and on November 3, 1977, the Developers sub;:~i`red an amendment to its building proposal that decreased the height of the buildia~l~. i;lcreased the setback from the property line nearest the Academy of Arts. and decrea~;.d the number of apartment units in the building. A Committee of the Whole ("Cc• ~Z:nittee") met on November 10, 1977 to discuss ~e Developers' amendments resultir~~; in a proposed committee report which stated that an amendment be added to ti~.~ ~;ouncil's itutia.l September al, 1977 approval of the Developers' application incorpor~~ting the Developers' suggested changes. The Committee voted to report out its proposed committee report for action on the floor. The Council adopted the ComA~.i~r~~o"s report with eight in the affirmative and one in the negative. II. PROCEDURAL HISTORY Plaintiffs filed suit on May 2, 1978 alleging, among other thins, the Council's action in approving the Developers' application for variance or .~.~odification went beyond the Council's powers thus violating the principle of checks an~:i balances. 2214.00 IIMAK•7 fur ei '~e it~lt~Fri Fur's ~~E~,vEF HzaTT~~ ~~_E~~-=~~~-at~~~a F.~~~ To: ABB; LLB prom: MAK Dated: June 1, 2000 Re; Bridge - Aina Le'a Page: 3 The First Circuit Court of Hawaii dismissed plaintiff s complaint and denied their motion for relief from its judgment. III. IssvEs A. Whether the Council's approval of the Developers' an~lieation for variance or modification violated the principle of checks and balances? B. Whether the Council's approval of the Developers' application was invalid because the Council approved the application by voting on motion far approval without going through the formality of enacting an ordinance or an amendm~,a.~t? IV. HOLDINGS A. No, the Council's approval of the Developers' application involved anon-legislative act therefore the Council acted in accordance v~-itl2 the provisions of the Revised Honolulu Charter {"RHC") and not with any intent to circumvent the veto power of the Mayor. B. No, the Council's approval by vote on a motion did not require the enactment of an ordinance and an amendment to ordinance because the Deti~Plopers' application involved anon-legislative matter and thus was not required to bc~ approved by an ordinance and amendment to ordinance. V. Rti LES A, Le isiative Acts 1. The legislative power of the City and County of Honolulu is vested in and exercised by the City Council. RHC § 3.101. The first sentence of Ri-1C § 3-201 requires the Council to exercise its legislative power b}r ordinance. 2. "A legislative act predetermines what the law shall b~: for the regulation of future cases falling under its provisions." Forstner v. City an_d_Coun of San Francisco, 243 Cal. App. 625, 52 Cal. Rptr. 621 (1966). B. Non-Legislative Acts aaia.ooi~.aKa JI_~~I C~~I 'eC~ 11~1~~M EFY"S DEAVEF' HIFTT,~ 8~8-~~,~-414 p,E~- To: ABB; LLB 1 rom: MAK Dated: 3une 1, 2000 Re: Bridge Aina Le' a Page: 4 1. The second sentence of the RHC § 3-201 provides: ":~ion- legislative acts of the council maybe by resolution, and except as otherwise provided, no resolution shall have force or effect as law." This provision implies that the Council may exercise non-legislative power in addition to its legislative power. Life of the Land, Inc. v. City Council of City and County of Honolulu, 61 Haw. 390, 423, 606 P.7d $66, 887 (1980). 2. "A non-legislative act executes or administers a law a1~•eady in existence." Kelley v. John, 16Z Neb. 319, 75 N-W.2d 713 (1956); Keigley v. Bench, 97 Utah 69, 89 P.2d 480 (1939). The Council may exercise its non-legislative power ``by resolution or by resorting to some other parliamentary procedure, such as voting on a motion made at a council mewing." Life of the Land. Inc, v. City Council of Ci and Count of Honolulu, bl Haw. 390.423.606 P.2d 866, 887 (1980). VI. ANALY3T8 A s`A legislative act predetermines what the law shall be for the regulation of future cases falling undwr its provisions.'' Forstner v. City and Count of San Francisco, 243 Cal. App, 625, 52 CaL Rptr. b21 {1966). The Kakaslco Ordinance falls under this deff nition and thus constitutes a legislative act. The Council's approval, ho~~,rever, of the Developers' application for variance or modification pursuant to section 1VmA of the Kakaako Ordinance constitutes anon-legislative act. "A non-legislative act executes or administers a law already in existence." Kelley v. John, 162 Neb. 3 i 9, 75 ~ . ~`>'.2d 713 (1956); Keigle v. Bench, 97 Utah b9, 89 P.2d 480 (1939). Therwfore thM c::,uncil's approval of the Developers' application is anon-legislative act because the ~'ouncil administered a law already inexistence, that law being section IV-A of the ~;akaako Ordinance wherein the Council reserved the power to vary or modify an application in order to "avoid the imposition of any inequities and undue hardships." Life_of the Land, Inc. v. City Council of Cit and County of Honolulu, bl Haw. 390, 395, 606 ?.2d 866, 872 (1980). Furthermore the Council may exercise its non-legislative po•~;-c;r by resolution yr by resorting to some other parliamentary procedure such as eating on a motion made at a council meeting as was done in this case. Life of the Lancl, Inc. v. City Council of City and County of Honolulu, 61 Haw. 390, 423, 606 P.2d 866. 887 (1980) (citing Town of Irvi ton v. Ollemar, 128 N.J. Eq. 402, 406, 16 A.2d 563, 566 (1940)("Any action of the body, which does not rise to the dignity of an o,dil~ance; is a resolution.")). aasa•ooln~x•~ JUN ~1 '~C~ 1. ~ 17AN EA'YS DEF~4EF HIHTTi~ cF~8-5~~-4184 F'. 7.~- To: ABB; LLB From: MAK Dated: June 1, 2000 Re: Bridge - Aina Le' a Page: 5 Plaintiffs argued that the Council's decision to accept the I7~:~~elopers' application involved a legislative act. In support of their argument, Plaintiffs cited the provision in section IV-A of the Kakaako Ordinance which suthorized the Council to vary or modify the application of any provision thereof if the Council dete:~,:tiined "[with]in its legislative diseretiora," Life of the Land, Inc, v. CiY}~ Council of City_ and County of I-Honolulu, 61 F-Iaw, 390, 425; 606 P.2d 888 (1980) (emphasis add~-~c1), that such variance or modification was consistent with the General Plan, Detailed Land Use Reap, Development Plan and CZC and the health, safety, morals and welfare of tlx~-- Cit}' and County of Honolulu. In the context in which the words were used. the court constn~ed "legislative discretion" to mean in the discretion of the Cauneil, which has a~oza- legislative power in addition to its legislative power. As the court stated ill ?n re Addison, 385 Pa. 48, 57-58, 122 A.2d 272, 276 (1956): "Them is no special virtue in ~1~~: word `legislative' merely because it stems from the same root as `legislature' , It c'.e~7ves its qualifying meaning from the character of the thing done," Plaintiff s relian.cc, therefore, on the words "legislative discretion" is misplaced and used out of eontegt. !~s such, the Council's decision to approve the Developers' application was a valid actio,l made pursuant to its discretionary powers. Finally, section 5-104(1) of the RHC provides further evide;~:.e that the Council acted v<nthin its discretionary powers. The section grants vetoing power to the Mayor over ordinances, resolutions authorizing proceedings in eminent domain; and resolutions adopting or amending the General Plan. The Council's decision to approve the Developers' application on September 21, 1977, and its subsequent decision to approve the Developers' amendments to its proposal on November 10. 197x' «ere not subject to the Mayor's vetoing power because the Council's actions did not fall under the categories of ordinances, resolutions authorizing proceedings in eminent domain, or resolutions adopting or amending the General Plan. Therefore the Council's actions did not violate the principle of checks and balances because its decisions ~~-ere n~~de in accordance with 1ZI-IC § 3-201 recognizing that the Council has non-legisl:~, ive power in addition to its legislative paver, B. In addition, because the Developers` application for a variance or modification constituted anon-legislative matter (the Council's decision to ~t•ant or deny the application was made in furtherance of a legislative act, namely, the I4akaako Ordinance}, the application was not required to be approved by an ordinance and an amendment to an ordinance. The Council properly acted «-itlun the ambit of their non- legislative power in granting the Developers' application. 22 i 4-001,'I~SACC-7