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Home My WebLink AboutCOM 0372.172 2024-2026bill 6, C,OMN. g72 �n C From: Michelle Melendez v ?c Sent: Monday, September 29, 2025 10:51 AM NCD G To: Council Testimony o Subject: GP Testimony Y N Aloha Chair and Councilmembers, Mahalo for the hard work on the General Plan 2045.1 support good planning, but several parts of the Plan create serious constitutional risks for property owners and small farmers. Below are simple, specific concerns with page references and the related constitutional protections. 1) "Urban Growth Areas" and "Urban Service Areas" can create unequal, arbitrary treatment The Plan defines Urban Growth Areas (UGA) and Urban Service Areas —areas where government services will be provided and growth is expected. Parcels outside these lines could be disfavored for basic public services and approvals even when owners follow existing law. That invites unequal treatment (14th Amendment, Equal Protection) and arbitrary decision - making (14th Amendment, Due Process). See the Plan's glossary definitions for UGA and Urban Service Area. County of Hawaii Planning Department If these lines are applied in a way that leaves land with little or no economically viable use, courts have called that a taking requiring compensation (5th Amendment, Takings Clause), e.g., Lucas v. South Carolina Coastal Counciland the Penn Central test. 2) Making "public access" or similar dedications a permit condition triggers strict constitutional limits The Policy Rationale document contemplates using permit conditions (e.g., public access as a condition of subdivision) and identifying corridors/easements through land use processes (pp. 41-42). When the County requires dedications or easements as a condition of approval, the U.S. Supreme Court requires an "essential nexus"and "rough proportionality." Otherwise it's an unconstitutional taking under the 5th Amendment (Nollan, Dolan, Koontz). See Policy Rationale pp. 41-42; then the cases. Justia I ate+31RP CDN Website+3Legal Informatbn- stitute+3 3) Re -labeling Agricultural land to Natural squeezes farm uses and risks takings The Plan's Land Use section and Table 19: "General Plan Land Use Designations and Maps" (p. 84) set the frameworkfor future map changes, including shifting parcels from Agricultural to Natural. If such re -designation removes ordinary, viable farm uses (or blocks all meaningful use), that can be a regulatory taking under the 5th Amendment (again, Lucas / Penn Central standards). Please avoid any change that functionally downzones farms without clear compensation or narrowly tailored findings. (Table 19 reference at p. 84.) Comm. ��• 1�L 7lel To:TV Ref. cote $_E 3 Z 21 4) Electfic-vehicle (EV) requirements must not be imposed on private applicants without a tight "nexus" and "proportionality" The Policy Rationale lists adding EV charging stations at appropriate County facilities (p. 80). That's fine for County property, but if similar requirements are pushed onto private projects as permit conditions or fees, the County must meet the Nollan/Dolan/Koontz tests or risk 5th Amendment violations. Justia Law+31RP CDN Website+31-egal Information Institute+3 5) The Plan's vagueness invites misinterpretation and arbitrary enforcement The Plan itself says "Actions are meant to be refined... and are not legally binding." That vagueness (combined with new service boundaries and map categories) makes it hard for owners to know what is required, increasingthe chance of arbitrary outcomes (a 14th Amendment Due Process problem). Clear, objective standards are needed before adoption. (See the Plan glossary entry for "Actions.") County of Hawaii Planning Department Requested fixes 1. Add guardrails: Expressly state that UGA/Urban Service Area lines cannot be used to deny basic services or approvals to otherwise lawful uses; require written, objective criteria and appeal rights (14thAmendment). Legal Information Institute 2. Tighten any exactions: Where the Plan contemplates public access, easements, fees, or improvements tied to permits, add a clause requiring written nexus and rough proportionality findings consistentwith Nollan, Dolan, and Koontz (5th Amendment). Legal Information Insti ute+ J is is aw+ 3. Protect farms: Before any shift from Agricultural 4 Natural, require parcel -level findings that ordinary, viable agricultural uses remain; otherwise provide just compensation (5th Amendment). Reference Table 19 (p. 84) in code updates. 4. Clarify EV policy: Keep EV charging directions limited to County facilities unless a private -project requirement can meet Nollan/Dolan/Koontz. Justia Law+31RP CDN Website+3i egal Information Institute+3 5. Reduce vagueness: Convert open-ended "Actions" into clear, enforceable standards or explicitly defer them to later ordinances, so owners have fair notice (14th Amendment Due Process). County of Hawaii Planning Department+l 6. Add a Community Plan for Hilo Mahalo for considering these constitutional guardrails. With these changes, the Plan can guide growth without exposingthe County —or its residents —to avoidable constitutional conflict. Notes to staff (citations): UGA / Urban Service Area definitions —Final Recommended Draft General Plan 2045 (Glossary). County of Hawai'i Planning Department Policy Rationale pages —Objective 27 & related policies (pp. 59-65), public access conditions �(pp: 41-42), EV chargers at County facilities (p. 80). IRP CDN Website+1 • Land Use Table 19 (p. 84)—referenced in County land -use presentation and commission records. • Constitutional standards-5th Amendment Takings & 14th Amendment Due Process/Equal Protection and the Nollan, Dolan, Koontz, Lucas, Penn Central cases. Respectfully submitted, Michelle Melendez-Freedom Activist Fitness and Wellness Expert Since 1996 Author Of The Best Selling and 4x Award Winning Book, End Dieting Hell. How to find peace in your body and release the weight Order your copy of End Dieting Hell Click Here "Great Maui Land Grab" NOW Availably