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HomeMy WebLinkAboutCOM 0183.002 2002-2004 , , Her x~ uncnln s.T. Aawaa Mayor Corjxxafion Coanal •i+:~: „S;t~r Gerald Tbkase ~•eF M'~ Anirfanf Corywrafion Courtin ~II1TT[#~T Q~ ~~tt2tit OFFICE OF THE CORPORATION COUNSI•;I, lOl Aupuni Stfnet. Suite 325 • Hi10. Nawaii 96720A262 • (808)961-8251 • FAX (808)961-8622 May 5, 2003 Pamela Mizuno, Deputy Director r~~ ~r~}' ~ Department of Parks and Recreation ~ ~ ~ 101 Pauahi Street, Suite 6C,r~`'' Hilo, Hawaii 96720 ~OV'ti~'°° I lLttfy~~l1 Dear Pam: Re: Park Dedication Use Fees Corporation Counsel WRK 03-5323 Issue:Can park dedication funds from Waiakea, Kukuau, and Kaumana be used for Keaukaha Gym? Short Answer: It appears that the new Keaukaha Gym is a prohibited improvement replacing the old gym for this park facility. Follow up requests also ask for clarification of the Director of Parks and Recreations' authority to use park dedication funds under Chapter 8, Hawaii County Code, in relation to Section 46-6, Hawaii Revised Statutes. Discussion: The enabling statute of Section 46-6, Parks and playgrounds for subdivisions, Hawaii Revised Statutes, authorizes the County to draft ordinances pertaining to park dedication and to collect fees from the developer in lieu of the developer providing park lands for the desired development i This State statute also provides that the County, and not this fund, pay for improvements and maintenance. HRS Section 46-6, however, does not specifically resolve the question of expending funds gained from one subdivision approval in another subdivision. Relevant parts of Section 8-9, Use of fees, Hawaii County Code, states: (a) All moneys received pursuant to this article shall be used for the acquisition and development of park and recreational facilities to serve the area in which the subdivision is located. Moneys received may be expended on neighborhood or community facilities in a~ Gomm. No. ~ w'~ Ref. T . F.;f. Do" Pamela Mizuno, Deputy Director Page -2- May 5, 2003 reasonable proximity to the subdivision. Where a public park and playground presently serves a subdivision, such fees may be used for the purpose of providing additional facilities for that park or playground. The director of parks and recreation shall determine the various park areas for funding purposes. What can the fees be expended on? Interpretation of this ordinance must be done by applying the rule of "plain meaning."' In applying the "plain meaning" rule, several basic tenants are evident from this subsection giving guidance on what the funds can be expended for in a given location relative to the subdivision contributing fee: 1. Within the area of the subdivision, park dedication funds are to be used to acquire and develop park and recreational facilities, and not for improvements, repair and maintenance. 2. Outside of the subdivision but within reasonable proximity, these funds may be expended for neighborhood or community facilities. This would include design and building for the facility; as opposed to improvements, repair and maintenance. 3. Where there is an existing park or playground, within or out of the subdivision that "serves" the subdivision, these funds can be used for development of additional facilities as opposed to improvements, repair and maintenance of the park or playground. 4. The Director of Parks and Recreation has the authority to determine what lands will be considered within an identified area for funding purposes. As it appears that the new Keaukaha Gym is an improvement to this park's facility, replacing the old Keaukaha Gym, use of the Park Dedication Fund is prohibited by the enabling statute, HRS Section 46-6. Where can the funds be expended? There are several instances of broad language2 within HRS Section 46-6(a), giving the director wide discretion in determining where funds from park dedication fees can be expended. There are limitations to this discretion. Again, the "plain meaning" rule states that the language within an ordinance ~ The "plain meaning" Tole states [hat "[I]f [a] rule's language is unambiguous, and its literal application is neither inconsistent with the policies of the statute the rule implements nor produces an absurd or unjust result, courts enforce the rule's plain meaning." State v. Ferrer, 95 Hawaii 409, 435, 23 P.3d 744, 770 (Haw App. 2001). 2 In points #1 and #4 i[ states the funds are to expended in the "area" of the subdivision but i[ is the director's discretion on what the "area" will be. In points #2 and #3 the ordinance refers to "reasonable proximity" and "serves" but does not define these [emus. Pamela Mizuno, Deputy Director Page -3- May 5, 2003 should be read consistently with the policy of the ordinance. Hawaii County Code Sections 8-6 HCC3 and 8-2(a)(3)4 should then be interpreted as limiting the "area" of fund expenditure to within the judicial district of the contributing subdivision. Within that judicial district, funds should be expended where the facility is in "reasonable proximity" or "serves" the contributing subdivision. What is within "reasonable proximity" or "serves" the contributing subdivision are policy questions dependant upon numerous other considerations, such as available transportation, physical distance, past practice, other similar facilities, etc. Conclusion. As it appears that the new Keaukaha Gym is an improvement to this park's facility, replacing the old Keaukaha Gym, use of the Park Dedication Fund is prohibited by the enabling statute, HRS Section 46-6. Should the new Keaukaha Gym be deemed not an "improvement," and it is in the judicial district that also encompasses Waiakea, Kukiaau, and Kaumana, the Director of Parks and Recreation could then establish the "area" for park funding purposes to include Keaukaha and the contributing subdivisions. However, it is not readily apparent to this writer how the new gym is to be deemed anything but an "improvement." The Director of Parks and Recreation should proceed with caution when establishing broad "areas" for funding purposes and what is to be considered to be within "reasonable proximity" to or "serving" the contributing subdivisions as it may have unanticipated side-affects. Sincerely, C IG T. MASUDA eputy Corporation Counsel CTM:ch/de S:dept\park\Itr pam mizuno re park dedication fee\5-03\CTMchde `~cc: Councilwoman Bobby Jean Leithead-Todd 3 Section 8-6(a). In the public interest, convenience, health, welfaze and safety, there shall be a minimum ratio of five acres of land for park and playground purposes for each one thousand persons in every district. a Section 8-2(a)(3). "District" means [he judicial districts of Puna, South Hilo, North Hilo, Hamakua, North Kohala, South Kohala, North Kona, South Kona or Ka'u, as defined by the departrnent of research and development. Pamela Mizuno, Deputy Director Page -4- May 5, 2003 ' §46-6 Parks and playgrounds for subdivisions. (a) Except as hereinafter provided, each county shall adopt ordinances to require a subdivider, as a condition to approval of a subdivision to provide land in perpetuity or [o dedicate land foc pazk and playground purposes, for the use of purchasers or occupants of lots or units in subdivisions. The ordinances may prescribe the instances when land shall be provided in perpetuity or dedicated, the area, location, grade, and other state of the sites so required to be provided or dedicated. In addition thereto, such ordinances may prescribe penalties or other remedies for violation of such ordinances. (b) In lieu of providing land in perpetuity or dedicating land, the ordinances may permit a subdivider pursuant to temrs and conditions set forth therein to: (1) Pay to the county a sum of money deemed adequate by the county to purchase the park land the subdivider would otherwise have had to provide or dedicate; or (2) Combine the payment of money with land to be provided or dedicated, the value of such combination to be as deemed adequate by the county to purchase the total amount of land the subdivider would otherwise have had to provide or dedicate. The method of determining such full or partial payment shall be prescribed by the ordinances. The ordinances shall also provide that such money shall be used for the purpose of providing pazks and playgrounds for the use of purchasers or occupants of lots or units in the subdivision. Each county may establish by ordinance a time limit within which it must spend the pazk dedication fees it has collected. (c) Pursuant [o terms, conditions, and limitations specified by the ordinances, a subdivider shall receive credit: (1) For privately-owned and maintained parks and playgrounds; (2) For lands dedicated or provided for park and playground purposes prior to the effective date of the ordinances. (d) Upon the provision of land in perpetuity or the dedication of land by the subdivider as may be required under this section, the county concerned shall thereafter assume the cost of improvements and [heir maintenance, and the subdivider shall accordingly be relieved from such costs. (e) The ordinances adopted pursuant to this section may provide, where special circumstances, conditions, and needs within the respective counties so warrant, for such exemptions and exclusions as the councils of the respective counties may deem necessary or appropriate and may also prescribe the extent to and [he circumstances under which the requirements therein shall or shall not be applicable to subdivisions. (f) For purposes of this section certain temrs used herein shall be defined as follows: (1) "Approval" means the final approval granted to a proposed subdivision where the actual division of land into smaller parcels is sought, provided that where construction of a building or buildings is proposed without further subdividing an existing parcel of land, the term "approval" shall refer to the issuance of the building permit. (2) "Dwelling unit" means a room or rooms connected together, constituting an independent housekeeping unit for a family and containing a single kitchen. (3) "Lodging unit" means a room or rooms connected together, constituting an independent housekeeping unit for a family which does not contain any kitchen. (4) "Parks and playgrounds" mean areas used for active or passive recreational pursuits. (5) "Subdivider" means any person who divides land as specified under the definition of subdivision or who constructs a building or group of buildings containing or divided into three or more dwelling units or lodging units. (6) "Subdivision" means [he division of improved or unimproved land inro two or more lots, parcels, sites, or other divisions of land and for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to, or interest in, any or all such lots, pazcels, sites, or division of land. The term includes resubdivision, and when appropriate to the context, shall relate to the land subdivided. The term also includes a building or group of buildings, other than a hotel, containing or divided into three or more dwelling units or lodging units. (7) "Privately owned parks and playgrounds" mean parks or playgrounds and their facilities which are not provided in perpetuity or dedicated but which are owned and maintained by or on behalf of the Pamela Mizuno, Deputy Director Page -5- May 5, 2003 ultimate users of the subdivision pursuant to recorded restrictive covenants. Where the privately owned pazk is a part of the lot or lots on which a building or group of buildings containing or divided into three or more dwelling units or lodging units is constmcted, it shall not be required that the private park or playground meet county subdivision standards nor shall the area of the private park or playground be deducted from the area of the lot or lots for purposes of zoning or building requirements.