Loading...
HomeMy WebLinkAboutCOM 0168.000 2000-2002 PROJECT PLANNERS HAWAII 5375 Kalamanaole Highway '_G Honolulu, Hawatt 96821 March 3, 2001 Mr Chns Yuen Plamm~g Director County of Hawaii Plamm~g Department 25 Aupunt Street Hdo, Hawau 96720 ~ Re AFDA's and CPR's = ~ AG Zoned Distracts Dear Director Yuen cn There are many concerned opinions regarding review of AFT2A's an¢,CPR's within AG zoned distracts in the County of Hawau I have been involvedin plan~tg and development issues in North Kona since 1975, and am aware of many of the contrary positions being voiced As other commitments require my presence elsewhere, I am not able to attend the March 8, 2001 hearing in HJo May I present these wntten opinions for your (Plamm~g Department) consideration in lieu of attendance The position statements rendered by the present administration must weigh all positions, actualities and problems based on current legislation When an AFDA or Ohana application i~ tendered, there are existent ordinances covering the issuance of these permits 1 agree with your position that CPR's, however argued, are a legal division (uf ownership rights) and should not allow densities that exceed existing County zoning CPR's with approved AFDA and Ohana permits based on County zoning cannot be denied provided the minimum lot size conforms to zoning district requirements Further legal conveyance of any portion of the property which exceeds these densities by CPR or any other means defeats County land use policies and circumvents the Land Use Ordinance of the County of Hawaii Uncontrolled growth in AG zoned distracts (through CPR or any other opportunity) should not be allowed as it will A Tax (burden) infrastructural improvements and systems within the area B Provide legal means to by-pass County zoning regulations and land use policies C Promote "quasi-urban" usage of lands with agncultural significance D Tax County services within AG zoned areas beyond their design capabilities Comm N0. File No. Ref. To: mot, rave MAR_ 2 7 2001 While formulating your policies and making your decisions, please keep in mind the underlying constitutional rights of all property owners under common law Every act on the part of the County which relates to land use, zoning and admtntstrative interpretation of the Land Use Ordinance, is a derogation of the common law rights of property owners In thi,, respect, your decisions and policies are subJect to Judicial revtew The State Supreme Court has consistently held that strict mterpretatton of legislative intent of the ordinance by the Planning Department be administered Therefore, in my mind, the intent of the legislature (in this case the County Council) must be the basis for the subJect revtew and not necessarily Planning Department policy and tnteipretatton of the particular ordinance Questions posed which relate to AFDA/Olhana permits and CPR's are two (2) separate and non-related items When reviewed under the criteria set forth by the State Supreme Court these questions may translate as follows I 'What was the intent of the County Council when rt enacted ordinances (legislation) relating to AFDA and Ohana dwellings on properties within AG zoned districts'", and, 2 'With regard to ownership (whether by subdivision or CPR), what was the intent of the County Council when tt enacted zoning ordinances~'~ In the first case, administrative interpretation of definitions such as "farms" (their size and income) and other cntena used in permit approvals should be based on clear legislative intent In the second case, I feel that legislative intent is very clear Zoning ordinances define density and any land owner that proposes division of ownership rights in excess of allowable density has no legal basis for such action If legislative intent, in either case, is unclear the County Council should amend the ordinance, and clarify its intention(s) to avoid Judicial remand New State legislation may require this as a matter of fact This particular subJect is potentially volatile and any decision should made with this eventuality m mind State laws require all County land use legislation be duly enacted by the County Council The Council has a Plamm~g Committee through which all clarifications and amendments can be properly voiced and advanced Lam sure that a Joint eIl'ort on the part of the legislative and executive arms of the County can accomplished cooperatively Legislative intent of a law has always been a basic cornerstone iii our country's legal system I enclose a copy of an opinion by Justice John Marshall rendered in 1804 with regard to this position When interpretation exceeds intent Judicial intervention may occur This holds true for public as well as Planning Department opinions The simple fact remains, that all County legislation and enforcement thereof, must stand on firm and clearly understandable ground to which we look to our County Council to wisely provide and you to Justly enforce Mything short of that fails to meet mandated requirements contained in our County Charter and the revised laws of the State of Hawatt This mandate is the minimum standard from which all enforceable regulations are created Thank you for the opportunity to submit this statement, and I hope any decision takes some of these points into consideration The days ahead are filled with pitfalls and problematical s~tuat~ons I am sure that you wdl make the nght decisions that consider all situations and continue to protect the nghts of property owners m Hawau County May we all travel this road one last time and not be recalled by judicial mandate to retrace our steps again My commitment of valuable County nine and resources to this process should be ludicrously applied and considerately undertaken It is my hope that end results of the heanng will bnng about solution(s) that are clearly understood by all and end any misunderstanding or m~smterpretation of legislative intent on these subjects Respectfully~su(bpm~~tted, J Gregg Kashiwa President cc County Council Planning Department/Kona Office Peter Young HIBR -3- John Marshall in Pennington v. Case, 1 U.S. (2Crauch) 346, 348 (1804) "That a law is the best expositor of itself, that every part of an act is to be taken into view for the purpose of discovering the mind of the legislature and that the detaJs of one part may contain regulations restricting the extent of general expressions used in anther part of the same act, are among those plain rules laid down by common sense for the exposition of statutes which have been uniformly acknowledged." Defimt~ons FARM Noun I A tract of land devoted to agncultural purposes 2 A plot of land devoted to the ra~smg of domestic or other animals FARM Verb I To devote to agnculture 2 To engage m raising crops or livestock FARMER Noun A person who cultivates land or crops or rases Irvestock FARMING Verb 1 To devote to agnculture 2 To manage and cultivate a farm FARMING Noun The practice of agnculture FARMLAN D Noun Land used or suitable for farming FARM HOUSE Noun The dwelling on a farm FARMSTEAD Noun The buddmgs and adjacent service areas of a faun