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HomeMy WebLinkAboutCOM 0060.006 2000-2002 OJ~SV OF k~9 ~~`~'~'y• Lincoln S.T. Asltida Harry Kian Mayer L+ Corporation Counse( '•..e ` Gerald Takase qTF oF'we..N A.csisranr Corporation Counsel ~~ix~~~ z,Y~ .~~x~r't OFFICE OF TI-IE COI2POI~ATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961-8251 • FAX (808) 961-8622 May 15, 2001 Ms. Bobby Jean Leithead-Todd l-~' Planning Committee Chair Hawaii County Council 25 Aupuni Street Hilo, f-iawai`i 96720 Dear Ms. Leithead-Todd: RE: Communication 60/Bill 17 Change of Zone Application, RS-10 to CG-20 TMK: 2-2-40:14 and 69 Matsuno Enterprises, Ltd. (C3ur Entry No. 287) This is in response to your letter dated April 3, 2001, in which you asked- for a legal opinion as to what is the General Plan Land Use Pattern Application Guide (LUPAG) Map designation of-the subject property. This question arises in context of the owner's application for upzoning, and the Charter Section 3-15 (b) requirement that no zoning ordinance "shall be initiated or adopted unless the same conforms to and implements the general plan." We have reviewed various historical documents regarding the discussion of whether this property was interpreted as being within the high density area by former Planning director Albert Lyman. It appears, that Mr. Lyman did in 1987 give the Planning Commflssflon his-opflfllflon that thfls property fls "already included" or "already reflected" in the high density designation. Hearing Transcript, August l7, 1987, pp. 14- 15. By letter of November 4, 1988 the owners-nevertheless asked the Council to specifically include the property in the high density area. By letter of January 25, 1989, Takashi Domingo asked the Council to include this request in the LUPAG map changes Comm. No• ~ ~ • File No. ~ ~ ~s~a Il~~~ I?a ~ a. - - - Ms. Bobby Jean Leithead-Todd May 15, 2001 Page 2 to be recommended to the Commission. On February 15, 1989, the Council appears to have forwarded the request to the new Planning Director, Duane Kanuha. However, the request does not appear to have been included in the final changes to the LUPAG map. Prior amendments placing the Prince Kuhio Plaza area into high density identified Puainako Street as the boundary. All concerned concede that the LUPAG map was not formally changed to include the subject property in the high density area. You have essentially asked whether Planning Director Lyman's interpretive statements have the legal effect of including the subject property in the high density area, and if so, under what authority. The short but somewhat superficial answer is "no," Mr. Lyman's interpretation does not change the LUPAG map. The LUPAG map, consistent with general plan history, graphically seems to show Puainako street as the boundary between the Prince Kuhio Plaza high density area and the subject lower density area. If you assume the foregoing, according to the LUPAG map the subject property was and remains on the lower density side of Puainako Street. As Councilman Tyler aptly noted, "you could give this to a grade school person and they could tell you exactly where this property is." . Apri13, 2001 minutes, pp. 9-10. However, does this necessarily mean that an upzoning of this property could not "conform to and implement the general plan" as required by Charter Section 3-15(c)? Not necessarily. That is a decision as to which the Planning Director may advise the Council, and which the Council must ultimately make. This is because the LUPAG map was not meant to describe in fine detail what specific lots were immutably predestined to specific designations. T'he General Plan p.79, under "Proposed Land Use Pattern" states: "There are reo universal standards for determining the amount of land needed in the future for each land use or activity located within an area. Estimates can be made, however, of the future land use acreage allocation for each use. T'lae laud use pattern is a brmad, flexible design intended to guide the direction and quality of future developments in a ,coordinated and rational manner. The General Plan Land Use Pattern Allocation. Guide Map. indicates the general d®cati®aa ®f vari®us laud uses i~ relati®a to each other. Ms. Bobby Jean Leithead-Todd May 15, 2001 Page 3 Land uses are designated generally on the map in reference to the following categories:..." (Italics added) The General Plan goes on to list the various Urban and Rural Designations. But by its own terms, the land use pattern and the LUPAG map is intended to show a "broad, flexible design," indicating only the "general location of various land uses in relation to each other." Uses are only designated "generally" on the map by category. The LUPAG map clearly is not intended for use as aparcel-by-parcel delineation of use limitations. It can be argued that where streets are used as boundaries, this should provide precise use limitations for adjacent properties. However, it is apparent that the map is not scaled to provide that degree of accuracy. Indeed, the streets are not even marked or identified. The current Planning Director, Mr. Christopher J. Yuen, in his Apri127, 2001 letter to Corporation Counsel Lincoln Ashida, notes that "there are many instances where zoning has been allowed that is not precisely consistent with the LUPAG, if you try to precisely scale the map." This includes areas such as parts of the Kona Industrial subdivision and the Ritz-Carlton Hotel. If the map is not scaled for this level of accuracy, then even the accuracy of the supposed streets is in question. Even if one wanted to use the map for parcel-by-parcel categorization, it simply is not scaled to do so. It can be argued that the history of the Plaza specifically identifies Puainako as the boundary between areas. However, if the purpose of the LUPAG map is to show the "general" location of various intended land uses, and not specific parcel status, then it should be used in a general way, especially regarding lots which are on the boundary lines. This parcel is definitely on the boundary line. Puainako Street may tell you where the line is, but the general plan says the line is still general, broad and flexible in its application. For parcels such as this, it would be convenient but probably a misuse of the LUPAG map to simplistically say, "can't even consider it, would not conform to and implement the general plan." The General Plan and LUPAG map actually show this lot adjacent to the very edge of the generally shown high density area. In such a situation, it falls to the Planning Director to advise the Council on whether upzoning of this particular parcel would conform to the general plan, as expressed by the general outlines of the designated use areas. . Ms. Bobby Jean Leithead-Todd May 15, 2001 Page 4 Before the 1998 Charter amendments, the Planning Director was, among other things, to: (a) Serve as the chief planning officer of the county and the technical advisor to the mayor, planning commission, and council on all planning and related matters. (b) Prepare a general plan and amendments thereto to guide the development of the county district or districts. (c) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments or modifications thereto... . (g) Receive,. process and recommend to the planning commission appropriate action regarding rezoning applications . After the 1998 Charter amendments, the Planning Director is, among other things, to: (a) Advise the mayor, planning commission, and council on all planning and land use matters. (b) Prepare a general plan, implementation plans, and any amendments thereto in accordance with Section 3-15. (c) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments thereto... . (g) Make recommendations on rezoning applications, . Thus, it has been and remains the Planning Director's duty to advise the Commission and the Council on rezoning and planning. Being the drafter of the general Ms. Bobby Jean Leithead-Todd May 15, 2001 Page 5 plan and amendments, the Director clearly speaks with some authority regarding the intent and implementation of the General Plan and the LUPAG map. If anyone in the County is authorized to advise the Council regarding whether a proposed rezoning conforms to and implements the general plan, it would be the Planning Director. Perhaps this is what Mr. Lyman was in substance saying; that this property need not be specifically included by amendment because it is on the edge of the general high density boundary of Puainako street. It would be within the Planning Director's authority to advise the Commission and Council that an upzoning of such borderline property would conform to and implement the general plan, if he reasonably believed thus under all the circumstances. To summarize, the subject property appears to be just outside of but adjacent to the high density LUPAG map area bounded by Puainako Street. However, because the general plan and LUPAG map are intended to flexibly establish only the general location of different types of uses in relation to each other, the property's LUPAG map location should not automatically foreclose consideration of rezoning. The significance of the LUPAG map location should be considered in light of the advice of the Planning Director and the recommendations of the Planning Commission regarding this rezoning. The Council should consider all applicable general plan policies to determine whether rezoning would conform to and implement the general plan, as well as other usual factors considered in weighing the merits of a rezoning request. We hope this has been of help. Please contact the undersigned if you require further assistance. Sincerely, IVAN M. OIZI E Deputy Corporation Counsel IMT:ch xnisc2: a/CouncilChangeZoneMatsunoEnterprise.ltr