HomeMy WebLinkAboutCOM 0219.006 2000-2002 . o7i1~/U1 08:57 FA$ 8089818622 CORP COUNSEL X1002
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June 8, 1999
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O~'I1~m1I01~ 1~~. 99-3
James Y. A„rakaki, Chairnnan
. ~fawaii County Council ~ ~ ,
ZS ~.upuni Street
~?10, Hawaii 96720 '
:Dear Chairm~ Arakalci:
12e: Bill 64. D 3--I~1a Units on SI~U_Ag Lead
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This is in response to questions concerning J~~I164, Draf13, which the ~Cou~ci~ raised at gts
May 25, 1999 tn~ting. 'that bill char~.~es ilea z®ning of approxarnately 5.193 a+er'es of real
proper in lolorth Iona from Agricultuaai (A-Sa) ~ p'affii1y A~riculturai (1~A-2a) oar
Agricultural (A-2a). The lead is designated as agricultur~I by the State land Use
Commission (LUC), and is a 5.193 acre parcel, statroualded on all sides by A..Sa zoned ~
parcels. The conc~rtr is over the legality of proposed Condition I, which states:
Restrictive covenants in the deedslof all proposed lets within the subject property
shall prohibit the co>~.s~uctioa~ of a second dv~rellang unit on Bch lot. A copy of
the proposed covens) to be recorded ~arith the Bureau of Conveyances shall be
subnaittocl to the Playing I3arector for review and approval prior to the issuance
of l~ final Subdivision approval. A copy of the ,approved covenant shall be kited
in aa~ instnunent executed by the applicant and flee County and recorded with the
Bureau of Conveyances for any portion of the s><ab,~ect property. A copy of tl~e
recorded docrnn~nt~sball be filed with the Planning I) ~t upon its receipt
from the Bureau of~Conveyattces. ;
Fuarther, C ondition B of the Bill requites that:
The applicant, successors ar assigns shall be responsible for coi~aplying with all
r®qusre~ncnts of Ckaapter 205, I~awaii Revised Statutes, relating to ihlc
Lases within the State LaHad LTse Agricultural I3isirict. ~ ~ . ~
Comm. No.
' ale No. ~ ~ ~ ~
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'The debate ever the bill has raised s~reral interesting ic~gal issues.
I. bible Con~iot with State Land.Use Law
Hawaii devised Striates, §205~.51ist~ the permitted on ].and which is designated as
agricultural by ~e State Land Use Commissi®n. Subsection (a)(4) included as a p
fie; ~
(4) Farffi dwellings, employee housitag, fame buildings, or activity or uses related
to faYrnirag and animal husbandry;
' l; arm dwelling as used in dais para~aph means asingle-family dwelling located
on and used in connection with a faun, including clusters of single-family farm
. dwell~gs perm.ifted within agr'tcultutal parks developed by the State, ®r where
agricultural a~vity,provides income to the family occupying the dwelling.
'his office has perviously rendered the opinion (OP 94-1 of 1~^ebruary 9, 1994) that so-called
"ohana" units could be permitted on land designated. as agricultural by the LUC, so long as
all units on the property rae$ the definition of a. "farm dwelling" Tie espirlion does not state
' that there is a right to atg unlimited number of fay. dwellings on LUC agricultural land, nor
does it state that them can be an limitation oar the nt~ber of farm dwellings on such
property_
State law makes it clear, that euhile sash uses as "farm dwellings" shall be permitted. on
agriculture designated. lands, flint these cases maybe further defined by fibs counties by
ordinance_'Fi[tS 205-5(b). `i`hus, should the Council wish to Ii.anit the density of "farm
dwellings," through the use of zoning prower;it would be fi~ to do so. Z'her~e are dif~ictalties
which arise, however, whew. this power is applaed to a single parcel, as opposed to being
made part of a generally applicable policy.
3 Zox
"Spot Zoning^ is defaliegi as an:arbitrary action by which a sma11 acre within a large area is
singled out and specially Zoned fox a use classif calaion da£ferent from and inconsistent with
the classification of the surrounding area and .which is not in accord with the general plats.
Life of tfae Land vs_ City Comical of City ct»d Co~Py of
H®~®lul~ 60~ P2d, E66, 51 Haw.
39~ (1980). It has also been deigned as an am~endffiertt which reclassifies a small parcel in a
ffiannex inconsistent with existing zoning patterns, for the beneiYt of the owner and without
any substantial public pure®se: ~4nderson, ~rican Law Qf Toning, §5.12 (4th 1?dd. 1996).
When it actors, rt ~ an aznpxoper exercise of the zoning power, and is void_ Lr~rc Yip Kee,
Ltc~ vs. City and Coza~ly of
Honolt4l~ 7b7 P2d. 815, 70 Tdaw. 179 (1989}.
At first glance, this proposed action. would appear to be an attempt at "spot zoning." `T'here is
no other A-2a property anywhert near the a~ect®d parcel, and there is no evidence of any
public purpose, ether than tffie benefit of the owner, tv be served by dais aetaon. purkher flee
size of fibs parcel falls is between mat where 1?rofessor Anderson finds n~ly all
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arr;rendn9ents to be disapproved; (3 acres), and that where spot zoning challenges are
generally rejected (11 acres). Ibid at §5.15.
Zn i,z~z Yip Kep, supra, the Council ha,d downzoned the plaintiffs parcel from "hiigh
T)erisity'° to 'Pl.o~vv I~nsity" ap ~ Noting that the surroundia~ area con a zuixture
of apae~aent and ptr~blic facility uses, and noting the presaan~ption in favor of the ordinance
validity, the court upheld tl~ action finding it avt to be ire®nsistent with the classification of
the surrounding a Likewise; in L ~e o,
f 'the supra, the challenged a ent project
was consistent with ofiher zoning in the area.. '
l'€ere, the proposed rezoning involves fihe change of use, but only of permitted lot size. 'T'hus,
while an inconsistency with the surrounding Area is created, that inconsistency does not
extend to the activities to be permitted on the land.. RThile there ffiay be a. suspicion that the
real intent of this proposal. is to creme upscale residential properties, having little or nothing
to do with agriculture, that would be prohibited by the Std Land Use Law iua any event_ I
do not, therefore believe, that this ordinance, should it become law, w®u1d be struck dvwrt as
• having "spot zoning," ~
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ITZ. Conte
94/h~ere a zoning ordinance autliorizes a p use if the landowner entet°s into a covet
to restrict the use in certain:wa~s, wha# i'.s termed "s~antr~t zoning" occurs. Such bargaining
with the police power is generally foua~d to be unlawful. Aradersor~ sa~pPa at §9.21, and any
proffiises made pursusat to such zonia~g actions unenforceable. C~Yinn vs step
Irrve~or~s, 499 PA. 498,. 453 A2'd. 1385 (1982).
, Thus, in Z'imr~er~ vs County o,
f ~Peoac~, 33 Ill. App. 3d 612, 3381~2c1.145 (1975), a
landowner seeking rezoning to' constrtaet a country and. western dance hail, to file a
eov~ant which promised among other thin8s, that the property would not be used for any
other permitted business use. Findang t}~t to permit each citizen to be governed by
legislation based on the best deal that he can make with the county would not be consistent
with the notion. that the law should affect alike all vvhho are similarly situated, flee Court
strlack down the ordinance. ;
The condition which this bill attempts to impose upon fzature construction of so-called
"ohaaa" housing, imposes a restriction on this property z~ot placed upon siffiilar properties,
and does so without any findings to the necessity to do so. In so doing, this Council
would, by use of privA.te res~irtive covenants; improperly deprive future councils of the
right to exercise their legislative authority to regulate the zoning of this property. Orton vs,
~dtkinso~, 228 G~ 733, 187 SE 2d 825 (1972)
Persuasive arg~.~nnents havc~'been m that the unrestricted use of the "ohanna" process to
evade density restriction is i serious problem The proper approach to that probleffi is to
determine where this sitaation exists, and to deal with it on the basis of law of general
applicability, not by hoc agr~Rnen$ wlth inciividual~ property owners.
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IiT. ~omclusion
)ior fibs foregoing r~,soms, it is ffiy opinion that while Condition I of Bill b4,1 3, dog
not controvert smote 4and ~ lam, nor dies it conflict with Condition B, ~rhich is a sognewhat
supcrflluous requirement that the applicaIIt follows the law, Second, ~?hile this pr®posal
possess many of ~e chag°acteristics of "spot zoning," became it would not ntally
chautge the pertnift~ use of the property it world be defensible_ Finally, however,
conditioning of this action on the paomise of the properly owrae~,
and all theix successors, to refrain fronn taking advantage of a benefit to which they v~rould
othere~arise be entitled, constitutes zoning by cantrac~ and the condition would n®t be
enforceable.
Pisses contact this office if them are any questions.
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Sincerely,
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By
RICI:IA~ D. ~LIRDBMA,N .
Corporation Coaa~el
1tI7~Fl:ch
~i1164~penaon.ltr ,
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