HomeMy WebLinkAboutCOM 0027.053 2000-2002 ~tV OF N~bY
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J. CURTIS TYLER IH Bus: (808};26-5684
~~ice Chair F<tx: (808) X26-5697
District 8 (A'orth h'onn) - ' ch'ler~ri'interpac.nct
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HAWAI`1 COUNTY COUNCIL
bona Council Offrce • "'-6399 Nalani Sheet •Suite l0~1 •Karlua-Ikorta •Hairai `i • J6 "-~0-8)80
May 17, 2001
MEMORANDUM:
TO: The Honorable James Y. Arakaki, Chairman
Hawaii County Council
FROM: J. Curtis Tyler III
Vice Chair
SUBJECT: Keaau Bypass
Attached please find a memorandum from Deputy Corporation Counsel Patricia
K. O'Toole regarding the referenced subject. Please have your staff number this
communication and circulate it to all Council Members for their review.
Thank you for your assistance. If you have any questions about this request,
please call me.
Attachment
Comm. No. ~
File No.~.~,.~~.~:~. „
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Harry Kim 400.`. ~a'~9'• Lincoln S.T. Ashida
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OFFICE OF TIIE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • FAX (808) 961-8622
MEMORANDUM
TO: J. Curtis Tyler III
Vice Chair, Hawaii County Council
FROM: Patricia K. O'Toole
Deputy Corporation Counsel
DATE: May 14, 2001
RE: Keaau Bypass
You asked for comments or advice as to the letter from Ms. Bonnie Goodell dated
March 27, 2001 and addressed to Council Chair, James Arakaki. As I understand Ms. Goodell's
letter, she believes that an environmental assessment prepared by the State Department of
Transportation for what was described as Project No. 130B-O1-92, Proposed Keaau-Pahoa Road,
Keaau Town Section, is in violation of Chapter 343 HRS. She contends that at least a new
environmental assessment should be prepared. She also raises the issue of potential County
liability for losses suffered by Keaau merchants as a result of County approval of
W. H. Shipman's Gateway Shopping Center. We do not believe that her contentions are well
founded.
Ms. Goodell's specific allegation regarding the environmental assessment is that it fails to
include information of the location of the proposed shopping center and its relationship to a
bypass alignment. She states this is a violation because the shopping center was part of
Shipman's plans, known since at least 1992, and were part of a Land Use Commission boundary
amendment proceeding which began in 1993.
In Docket No. BR93-699, dated July 18, 1994, In the Matter of the Petition of Office of
State Planning to Amend the Agricultural Land Use District Boundary into the Urban Land Use
District for Approximately 660 Acres at Keaau, Puna, (the Shipman property), the findings of the
Land Use Commission were that "broad land use concepts were identified, no specific use or
densities for particular areas within the Property have been determined.... uses identified as
potential uses within the Property include residential, parks and open space, industrial,
commercial, schools and other government facilities." (FOF#25).
We note that the document prepared by the State does refer to W. H. Shipman's plans in
§3.1 Existing Site -Land Use and Regulatory Status. Keeping in mind that the Chapter 343
document was accepted in December of 1995, it is not clear how much more detail would have
been available at that time to the Department of Transportation regarding Shipman's plans.
I understand that the Planning Director has met with Ms. Goodell to discuss the concerns
she raised regarding this issue. My understanding is that he also feels that the Shipman plans
were included in the Department of Transportation study and no violation of Chapter 343, HRS,
is apparent from the information provided by Ms. Goodell and from a review of the Department
of Transportation document.
Ms. Goodell wants the County to investigate the alleged violations or to perhaps agree
with her statement that a new assessment is necessary. According to §343-5(g), HRS, a
statement that is accepted with respect to a particular action shall satisfy the requirements of
Chapter 343 and no other statement for that particular action shall be required. We would point
out that §343-7, HRS, sets forth a statute of limitation period for the environmental impact
statement process. Ms. Goodell's complaints are far past the time for filing judicial challenges.
The County has no authority over the adequacy or inadequacy of the State's document.
If a new environmental assessment is required under Chapter 343, it must be as a result of
a triggering activity. The actions which trigger the requirement of an assessment are found in
§343-5(a), a copy of which is attached for your review.
As to the concerns raised on the possibilities of County liability to area merchants for loss
of income, we do not believe that there would be a basis for such liability. The only County
action contemplated is the rezoning. Generally the exercise of zoning authority does not give
rise to tort liability on the part of a County. McQuillin Mun. Corp. §25.54. In a case by a group
of downtown property owners to invalidate a rezoning ordinance which would permit
development of a regional shopping center, a court found that it was not the function of County
zoning ordinances to provide economic protection for existing businesses. The reasoning of the
court is that free and open competition is a foundation of our society. The legislative body
should base it's decision on a particular zoning request on whether it is in the best interest of the
orderly development of the community. Swain v. County of Winnebago, 111 Ill. App. 2d. 458,
250 N.E.2d 439 (1969).
If you have any further questions on this matter, please let me know.
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