HomeMy WebLinkAboutCOM 0372.017 2024-2026P /5• M5D
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From: Michelle Melendez
Sent: Tuesday, July 8, 2025 1:38 PM
To: Council Testimony
Cc: Donna Special Friend; Sherilyn Wells Seed; Kalei Kailikini; Kevin Hill Pastor
Subject: Constitutional Violations In the Hawaii GENERAL PLAN 2045
COUNTY CLERK
COUNTY OF HAWAI'I
RECEIVED
To: Hawaii County Council / Hawai`i County Planning Department Time 138P•m • By
Constitutional Objections to the General Plan 2045 (Hawaii Island) Date JUL 0 $ 2425
Aloha Chair and Members of the Council,
I am a resident of Hawaii Island. I submit this testimony in strong opposition to the proposed Hawaii
County General Plan 2045, as it presents serious constitutional concerns under the United States
Constitution and the Constitution of the State of Hawaii.
I do not believe it was created by locals. Not only with all the Constitutional violations but what local would want
to partner with Government, private and non-profit agencies, and other stakeholders on nearly every area of
the general plan?
Here are the Constitutional Violations:
I. Violation of the Takings Clause (U.S. Const. Amend. V & XIV; Haw. Const. Art. I, Sec.
20)
The General Plan 2045 proposes sweeping land use redesignations, "urban containment boundaries," and
climate -driven restrictions on development and access. These provisions would:
• Diminish property value and use without compensation;
Limit Native Hawaiian and rural communities from utilizing land held in families for generations;
• Encourage eminent domain or de facto regulatory takings in the name of "resiliency" and
"sustainability."
This violates the Takings Clause of the Fifth Amendment, which prohibits taking private property for public use
without just compensation. The Hawaii Constitution also guarantees compensation when property is taken or
damaged (Art. I, Sec. 20).
Relevant Case Law:
• Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992): Land -use restrictions that eliminate all
economically beneficial use of land are takings requiring compensation.
• Kaiser Aetna v. United States, 444 U.S. 164 (1979): Imposing public access on private land without
compensation is unconstitutional.
II. Violation of Due Process (U.S. Const. Amend. V & XIV; Haw. Const. Art. I, Sec. 5)
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The General Plan empowers County agencies to:
• Unilaterally impose development restrictions;
• Establish "managed retreat" zones;
• Limit landowner activity without individualized notice, hearing, or meaningful judicial review.
This violates procedural due process, which requires government to provide notice and opportunity to be
heard before depriving individuals of property or liberty interests.
Relevant Case Jtaw:-°.,PjT ,
• Mathews telEldridge, 424 U.S. 319 (1976): Due process requires balancing the private interest affected,
the risk ofzL-rr_oneous,deprivaition, and the value of additional procedural safeguards.
• Sandy Beach Defense Fund v. City Council, 70 Haw. 361 (1989): Regulations that restrict property use
without` public -hearing or notice are subject to constitutional challenge.
III. Disparate Impact on Native Hawaiian and Local Communities
Many rural `ohana on Hawaii Island, particularly those with kuleana lands, subsistence practices, or
generational farms, will be disproportionately harmed by policies in the plan, including:
• Restrictions on agricultural use;
• Barriers to water and land access;
• Limitations on traditional and customary practices under Article XII, Section 7 of the Hawaii
Constitution.
Under the Equal Protection Clause of the 14th Amendment and the Public Trust Doctrine, the County is
obligated to ensure that government action does not disproportionately harm Native Hawaiian rights.
Relevant Case Law:
• In re Water Use Permit Applications (Waiahole Ditch), 94 Haw. 97 (2000): Reaffirmed that the State
and counties must protect traditional and customary Native Hawaiian rights under the public trust.
• Ka Pa`akai o Ka `Aina v. Land Use Comm'n, 94 Haw. 31 (2000): The State must thoroughly assess the
impact of land use decisions on Native Hawaiian traditional and customary rights.
IV. Overreach of County Powers and Lack of Oversight
The General Plan creates frameworks for:
• Blanket climate -based emergency powers;
• Delegation of legislative authority to administrative agencies;
• Top -down land use enforcement with vague limitations.
This concentration of power undermines the separation of powers and accountability required by both federal
and state constitutions.
Relevant Case Law:
• Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): The executive cannot bypass
legislative procedures or seize private assets based on claimed emergencies.
• Hawaii Insurers Council v. Lingle, 120 Haw. 51 (2008): Reaffirmed that rulemaking and administrative
actions must adhere to constitutional and statutory constraints.
V. Violation of Hawaii Constitution XVI, Section 13: PLAIN LANGUAGE
The General Plan is extremely vague and confusing.
Here is a list of confusing terms:
Section
Quoted Language Why It's Vague or Legally Problematic
Land Use "Encourage compact, mixed- "Appropriate areas" is undefined. No clear zoning
use development in appropriate guidance. Could allow rezoning without community
areas." consent.
Land Use
"Support rural character while
"Rural character" is subjective and undefined. May
promoting economic growth."
result in inconsistent or contradictory land use
policy.
Climate &
"Implement managed retreat
"Managed retreat" is not defined. "Feasible" for
Resilience
strategies where feasible."
whom? Raises major due process and takings
concerns.
Climate &
"Encourage climate -resilient
No explanation of what qualifies as "climate -
Resilience
infrastructure."
resilient;" Could justify costly, unreviewed
mandates.
Implementation
Evaluate success through key
No performance indicators are listed. Lacks
performance indicators."
enforcement or accountability.
Cultural Resources "Preserve and protect "Cultural landscape" is not defined in policy terms.
traditional cultural landscapes." Who determines what qualifies? May conflict with
land development.
Cultural Practices "Support Native Hawaiian No mechanism or legal standard for protection. No
cultural practices and access." mention of Article XI I, Section 7 of the Hawaii
Constitution.
Transportation "Promote multimodal and "Complete streets" is undefined. No funding
complete streets." strategy or rural applicability. Could allow state -
style mandates in small communities.
Natural Resources "Encourage sustainable use of
natural resources."
Growth "Direct growth to areas with
Management existing infrastructure."
Hazard Planning "Discourage new development
in hazard zones."
Implementation & "Coordinate with stakeholders
Monitoring to identify future strategies."
These vague phrases present risks such as:
"Sustainable" is broad and undefined — could be
interpreted to restrict traditional use or farming.
"Existing infrastructure" is undefined. Could be
used to bypass community input or impose
urbanization.
No clear definition of what constitutes a "hazard
zone." May be arbitrarily enforced.
No clarity on who the stakeholders are or what
qualifies as legitimate consultation.
• Regulatory takings without just compensation.
• Due process violations for landowners and rural communities.
• Arbitrary enforcement by unelected agencies.
• Insufficient legal protection of Native Hawaiian customary and traditional practices.
VI. Conclusion and Recommendations
Hawai'i Island's rural character, subsistence traditions, and unique cultural heritage deserve protection — not
erasure — by countywide planning. The General Plan 2045, as drafted:
• Violates property rights protected by the Takings Clause;
• Ignores due process and fair notice requirements;
• Disregards Native Hawaiian rights and rural residents;
• Concentrates power in unelected agencies with insufficient legal guardrails.
I respectfully urge the Council to:
• Reject or delay approval of the General Plan 2045;
• Conduct a legal and constitutional review;
• Engage rural and Native Hawaiian communities directly before implementing sweeping policy
changes.
Mahalo for your time and for upholding the values of justice, kuleana, and aloha in this critical process.
Respectfully submitted,
Michelle Melendez- Resident of Big Island
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