HomeMy WebLinkAboutCOM 0348.000 2002-2004 M<r os y
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COUNTY COUNCIL COUi . ~
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September 19, 2003
The Honorable J Curtis Tyler [Il
Acting Chair Planning Committee,
and Members of the Hawaii County Council
County of Hawaii
25 Aupuni Street
Hilo, Hawaii 96720
Dear Chair Tyler III and Members of the County Council:
SUBJECT: Wai Ola "Waters of life" Public Charter School And
Ala Loop Community Association
1 am referring two communications from the Law Firm of Tsukazaki Yeh & Moore
relating to the above subject to pour committee Yo be agendized on your next committee
meeting.
Should you have any questions or concerns, please do not hesitate to contact me at
(808)961-8272.
nce / -
Jam¢'~ Y. AraCk~aki, Chair
H~vai'i County Council
JYA/adr
Comm.
Ref. To:
Ref. Date CFP,,,~.~ 1
Tsukazaki Yeh & Moore R. BEN TSUKAZAKI
ATTORNEYS AT LAW rbt@lava.net
A Limited Liability Law Company THOMAS L. H. YEH
85 W. Lanikaula Street Hilo, Hawaii 96720199 tty@lava.nel
Telephone (808) 961-0055 FAX (808) 969-1531 MICHAEL w. MOORS
mmoore@lava.net
TRANSMITTAL LETTER
September 16, 2003 ow
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TO: Lincoln Ashida, Corporation Counsel CD
Councilman James Arakaki = ~
Judge Sandra Song r . 3
Brian Kajikawa, Dept. of Public Works, Building Division ~ '
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FROM: THOMAS L.H. YEH
R. BEN TSUKAZAKI
Attorneys for Ala Loop Community Association
RE: Wai Ola "Waters of Life" Public Charter School
Copies Date Description
1 09/16/2003 September 16, 2003 letter by Thomas L.H. Yeh
to Bruce McClure, Chief Engineer, Dept. of
Public Works
TRANSMITTED FOR:
X Your information and files Your further necessary action
Your signature and return Your payment
Your signature and forwarding Per your request
Your review and comment Per our conversation
Your review and approval See REMARKS below
PLEASE CALL (808) 961-0055 SHOULD YOU HAVE ANY QUESTIONS.
REMARKS:
TSUKAZAKI YEH & MOORS
By
Nancy Doug , Assists
R. BEN IhAZAKI
TSUkazakl Yeh BC Moore K REN TSUKAZ.AKI
ATTORNEYS AT LAW rM lu~;i_nci
A Limited Liabillly Law Company l'HOMAS I. H. YEH
dy@la~~nci
RS N'. Lanikaula Street Hilo. Hawaii 96720-4199 MICHAEL W MUORh
Telephone: (R081 961-0055 PAX (ROR) 969-1531 mmoore@~Ia~~ nei
September 16, 2003
Bruce McClure, Chief Engineer
County of Hawaii
Department of Public Works
101 Pauahi Street, Suite 7
Hilo, Hawaii 96720
Re: Wai Ola `Waters of Life' Public Charter School
Tax Map Key No. (3) 1-7-8-03
Dear Mr. McClure:
This fum represents the Ala Loop Community Association which has a number of
concerns about the proposed operation of the Wai Ola Waters of Life Charter School
(WOL) at the above-referenced parcel. The Association is comprised of most of the
owners or residents of property which abuts Ala Loop, Kurtistown, Hawaii.
Part of the Association's concern relates to the operation of the school at a site
which does not have the required Special Permit or Use Permit to operate from the above
referenced parcel, which is zoned as "agricultural" under the Hawaii County Zoning
Code and classified as an agricultural district by the Land Use Commission. We believe
that without such land use permits, which are required under the Code and by state law,
no building permits can legally be issued.
We understand that building permit application(s) have or may soon be submitted
by WOL to your department for processing and approval. We wanted to apprise you of
our position on the matter and to provide written notification of the special permit and/or
use permit requirement that we believe applies in this case.
We are requesting that your department or the Building Division provide notice to
us of the receipt of any application and the issuance of any building permit(s), if any, for
the site.
Bruce McClure
Page 2
September 16, 2003
Finally, regardless of your department's position on the special permit or use
permit issue, we request your attention to apparent Building Code violations on this
property. Based on information received from and the observations of the community
residents, it is the Association's belief that WOL is currently using the site for ongoing
school activities and that various structures on the site have been constructed without a
building permit and are thus in violation of the Hawaii County Code. We request that
you check into this matter as soon as possible and inform us whether you have found any
violations.
Should you have any questions about the above, please do not hesitate to let us
know. Otherwise, we would appreciate being kept informed by your department of the
permit status for the property.
Very truly yours,
TSUKAZAKI YEH & MOORE
By I
THOMAS L.H. YEH
R. BEN TSUKAZAKI
Attorneys for Ala Loop
Community Association
TLHY:nI
cc: Ala Loop Community Association
Lincoln Ashida, Corporation Counsel
Councilman James Arakaki
Judge Sandra Song
Brian Kajikawa, Dept. of Public Works, Building Division
Tsukazaki Yeh & Moore R. BEN TsuKAZARt
ATI'ORNBYS AT LAW rbK9av~ net
A Limited LiabfGty Law Company THOMAS L.H. Y8H
OyLla~~ nci
RS W'. Lanikaula Street Hlu, Hawau 96720199 MICHAF.I. W. MOORP.
Telephone (80R) 961-0055 FAX IROR) 969-1531 mmcrore@lav~ net
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September 16, 2003 ~
James Y. Arakaki, Chairman
County Council
County of Hawaii
25 Aupuni Street
Hilo, Hawaii 96720
Re: Waters of Life Charter SchooUAla Loop Community Association.
Dear Chairman Arakaki:
This firm represents the Ala Loop Community Association in regard to the
proposed charter school that the Waters of Life ("WOL") is attempting to establish on
Ala Loop.
The Association has very serious concerns about the legality of the manner in
which WOL has proceeded in this matter. Not only has the WOL ignored Ala Loop
residents until after implementing their plans for the proposed school, but it is proceeding
to do so without the proper approvals and permits.
An overview of the legal deficiencies in this matter is provided in the attached
letters dated August 14, 2003 and September 2, 2003 that we have sent to the
Corporation Counsel on this matter. To this date, Mr. Ashida has not responded to our
specific legal points.
Among the most serious of the legal issues that have been identified thus far is the
issue of whether or not the County has improperly waived its zoning power in regard to
charter schools. Quite simply, there has been no statutory pre-emption of the County's
power, and the County's own charter school guidelines provide that the Zoning Code is
applicable to charter schools. Yet, WOL has been allowed to proceed in non-compliance
with the Zoning Code, apparently with the approval of the Mayor and the Planning
Director.
Chairman Arakaki
Page 2
September 16, 2003
At this time, WOL is also bringing students to the site for school activities and is
occupying structures without building permits. Without WOL's compliance with
applicable requirements of the Code and other law, the health and safety of the Ala Loop
Community Association and members of the general public will be subjected to potential
adverse impacts (such as traffic hazards on a substandard road and at the entrances to the
Belt Highway, sewage disposal, water, etc.). In addition, as property owners, the
Association's members have a right to protect their interests against illegal land uses that
intrude within their neighborhood.
The Association feels that it has been abandoned by the County in this matter and
that the County has failed to provide an explanation for ignoring the law in this matter.
The Association respectfully requests that the County Council:
1. Place this matter on its next meeting agenda to allow an investigation and
public comment on this matter;
2. Request a legal opinion from the Corporation Counsel on the legal issues
that we have previously raised; and
3. Take such action that is necessary to affirm the force, effect, and
applicability of the County's home rule zoning power in regard to WOL's
proposed charter school.
In light of WOL's plans to open its charter school as soon as possible, the
Association requests that the County Council take prompt and corrective action in this
matter and avoid causing the Association and its members further hardship and expense
in seeking enforcement of the law in this matter.
Chairman Arakaki
Page 3
September 16, 2003
Please contact us with any response that you may have in this matter, any notice of
future County Council meeting that relates to this request, and any request for
information that we may be able to provide for your consideration.
Very truly yours,
TSUKAZAKI YEH & MOORE
By
THOMAS L.H. YEH
R. BEN TSUKAZAKI
Attorneys for Ala Loop
Community Association
TLHY:nI
Enclosures (2)
xc: Mayor Harry Kim
Christopher J. Yuen, Planning Director
Lincoln Ashida, Corporation Counsel
Judge Sandra Song
Representative Eric Hamakawa
Senator Russell Kokubun
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TsukaZakl Yeh & Moore R. REN TSUKAZAKI
ATTDRNaYS AT LAW rbt~lava.nei
A Limited Liability taw Company THOMAS L.H. YEH
Ily®IagAel I
85 W. Laniluula Street Hilo, Hawaii %720<I99 MICHAEL W MOORE
Telephone: (fl08) %1-0055 FAX (808)969-1531 mmoofe®lavanet
August 14, 2003
Lincoln S. T
. AsLria
Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720 i
I
Re: Operation of Waters of Life Charter School; Special Permit Requirement
Ala Loop, Puna, Hawaii
Ala Loop Community Association
Dear Mr. Ashida:
Our firm has been asked by certain residents of property bordering Ala Loop to '
review the issue of whether the proposed operation of the Waters of Life Charter School
upon land zoned for agriculture and accessed through Ala Loop in the absence of a state
or county land use regulatory process is proper. The residents are in the process of
forming a community association to be called the Ala Loop Community Association that
will soon be representing the concerns of participating residents.
As we understand, the County of Hawaii has previously interpreted certain
statutes, particularly HRS Section 302A-1184, as exempting charter schools from
applicable State land use district law to the effect that charter schools have been deemed
exempt from obtaining special permits for the operation of charter schools on lands
within the State agricultural district. Based upon our review of Section 302A-1184 and
other applicable law, we find that:
1. There is no exemption from land use regulatory law that has been ~
established for the purpose of protecting the public health and safety, and
2. There is no express exemption from or preemption of county land use laws
and regulations.
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Enclosure (1) i
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Tsulcazaki Yeh & Moore
ATTORNEYS AT IAW
A IJmibd l.iabiliry 4w Cmipury
We therefore believe that the County's interpretation is contrary to the plain
language and intent of Section 302A-1184 and that the failure to require the Waters of
Life school to undergo the scrutiny of a special permit or other land use approval process
will severely compromise the health, safety and welfare of the residents of the Ala Loop ~
community, students and others who work at or visit the proposed school, and the public '
at large. For this reason, we ask that you review the current interpretation that the
County has apparently adopted in light of the following information and to provide us
with your position on the issue.
Background Facts
Based upon infomuttion received from the residents of the Ala Loop community
and other sources, we understand that the Waters of Life charter school (WOL) has
acquired a 28 acre parcel of land formerly known as Sunshine Farms, designated as TMK
(3)1-7-8-03 for the purpose of operating a charter school on the property. I!
WOL has stated that it will have as many as 160 to 300 students enrolled at the
school and that teachers, administrative staff, vendors, and parents of students will travel
daily to the school.
Ala Loop is a narrow, approximately fourtcen foot-wide paved road with
shoulders as narrow as 2 feet in width in certain locations, providing access to and from
the Belt highway at both ends of the loop. On Ala Loop, not only is the pavement width
inadequate for two-way traffic, especially involving school buses, but there are sight
distance and curvature problems. Ala Loop is aCounty-maintained road.
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No traffic signals exist at the Belt highway intersections with Ala Loop. With the
recent opening of Kamehameha School's Keaau campus, and commuter traffic, there are
ah~eady severe trafFic hazards for those entering or exiting either end of Ala Loop during i
morning and afternoon commuter hours.
That the substandard condition of Ala Loop is inadequate to accommodate two- ~I
way traffic has already been officially recognized by the County. In 1995, the County
Planning Commission denied a special permit application for a proposed church on Ala
Loop citing the safety hazard presented by the substandard road condition of Ala Loop as
the primary ground of denial. A copy of this decision is attached for your review.
The WOL site is classified as Agriculture by the Land Use Commission of the ~
State of Hawaii and as A-20a under the Zoning Code of the County of Hawaii.
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Tsukazaki Yeh & Moore
erroiwevs erww
A Limiwd liabitlry law Campu,y ~I
Applicable Law
HRS Section 302A-1184 provides in pertinent part as follows:
"New century charter schools; exemptions. Schools designated as new
century charter schools shall be exempt from all applicable state laws,
except those regarding:
(3) Collective bargaining under chapter 89; provided that:...;
(4) Discriminatory practices under section 378-2; and
(5) Health and safety requirements.
New century charter schools shall be exempt from the state procurement
code, chapter 103D, but shall develop internal policies and procedures for
the procurement of goods, services, and construction, consistent with the
goals of public accountability and public procurement practices. However,
where possible, the new century charter school is encouraged to use the
provisions of chapter 103D; provided that the use of one or more provisions
of chapter 103D shall not constitute a waiver of the exemption of chapter
103D and shall not subject the new century charter school to any other
provision of chapter 103D. New century charter schools shall account for ~
funds expended for the procurement of goods and services, and this
accounting shall be available to the public. In addition, notwithstanding
any law to the contrary, as public schools and entities of the State, new
century public charter schools shall not bring suit against any other entity
or agency of the State of Hawaii."
The pertinent provisions of Section 302A-1184 were adopted in 1999 when the
Legtslature adopted the concept of new century charter schools. A review of the
legislative history for Section 302A-1184 reveals that when the exemption language of
the statute was being reviewed, the Legislature did not intend that the exemption statute
should be used to circumvent applicable zoning laws. Thus, in Act 62, 1999 SLH, the
Legislature's purpose in enacting the charter school legislation was to free such schools
from statutory requirements and bureaucratic red tape that inhibited a school's ability to
make decisions relating to the provision of educational services and to increase flexibility
and autonomy of such schools from the department of education. (See Section 1 of Act
62, Appendix A).
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Tsukazaki Yeh & Moore
ATTORNCYS ATLAW 'i
A Limited IJabtlity liw cAmpeey
Similazly, in Standing Committee Report No. 1404, the House Committees on
Education and Labor and Public Employment also expressed the intent that such schools
should be free of bureaucratic red tape, and be able to accommodate the individual needs j
of students and be exempt from state procurement laws. (See HSCR 1404, 1999 SLH,
Appendix B)
Section 302A-I 184 also reflects this intent and specifically addresses exemptions
from the state procurement codes, but nowhere in the statute or the legislative history is
there any indication that the purpose and intent of the statute was to relieve charter
schools from having to comply with state and county land use and zoning restrictions.
To the contrary, a specific exception to the exemption from "applicable state laws" are
those state laws regarding "health and safety requirements". ~
A Special Permit is Required for the Proposed Charter School Because
Special Permit Requirements Specifically Involve A Review of Health and Safety
Issues Before An Otherwise Impermissible Use Can Be Established on Land Within i
the State Agricultural District
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The list of permissible uses within the agricultural districts, as set forth in HRS I
Section 205-2 or 205-4.5, does not include schools. Beyond the list of permissible uses,
HRS Section 205-6(a) provides that the county planning commission may approve of
"certain unusual and reasonable uses" within agricultural districts other than those for
which the district is classified. HRS Section 205-6(d) and (e) provides that where a
special permit is sought for land .the area of which is greater than 15 acres, such a permit
shall also be subject to approval by the Land Use Commission.
The Land Use Commission (LUC) of the State of Hawaii has promulgated,
pursuant to HRS Section 207-7, rules on the review of special permit applications. ~
Section 15-15-96 (a) of the LUC Rules require any person desiring to use land within an
agricultural district for other than a pemrissible agricultural use may petition the county
planning commission for a special permit to use the land in the manner desired.
Although the County Planning Commission must hear and make a decision of the
petition, the approval of the Land Use Commission is required in addition to that of the
County Planning Commission when the area involved is greater than 15 acres.
The requirement that a special permit should not be granted unless it constitutes an
"unusual and reasonable use" connotes health and safety concerns that need to be
addressed before the issuance of the special permit. The LUC rules require that certain
guidelines be considered in determining whether a use is unusual and reasonable, I,
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'I§ukazaki Yeh & Moore
Artolwers Aruw
A limited IJabilitY 4w Cmnpany '
including whether the use would (1) adversely affect surrounding property, or (2) j
unreasonably burden public agencies to provide roads and streets, sewers, water drainage
and school improvements, and police and fire protection. LUC Rules 15-15-95(b). Sge
N.gghborhood Boa*d v State T snd se Co mi ion, 64 Haw. 265, 270 (1982). These ~
guidelines directly relate to health and safety issues for both surrounding residents and
the public health and safety: sewers, roads, water and fire and police protection. li
The WOL is required to apply for and receive a special permit from both the
Planning Commission of the County of Hawaii, as well as the LUC, pursuant to HRS
Section 205-6 and Section 15-15-95 of the LUC Rules, as the requirements for such a
permit directly relate to health and safety. There is perhaps no other statutory permit
review process required or available which would take such a comprehensive and
detailed look at the health and safety issues as the special permit process mandated by
HRS Section 206-6 and LUC Rules. ~
The County of Hawaii's determination that a charter school need not obtain a
special permit fot the operation of such a school on lands within the agricultural district, it
is not only erroneous, but to the extent that the operation of such a school would exist on
a parcel of land greater than 15 acres, such a conclusion would improperly result in an ad
hoc divestment of the Land Use Commission's jurisdiction over such permits. To the
extent that the County has informed organizers/operators of proposed charter schools that
a special permit is required on agricultural district lands without consideration of the
necessity of the LUC's involvement, the County should correct this position immediately
and inform the proposed organizers/operators accordingly. ~
Applicable County Laws Prohibit the Operation of a Charter School
Without a Special Permit
It is a basic tenet of land use law that the zoning power is derived from and is a
form of exercise of the police power, a power that must be exercised in the interest of
public health and safety. (Lum Yip Kee. Ltd. v. Citv and Countv , 70 Haw.179 (1989));
see also 83 Am Jur 2d, Zoning and Planning, 4, 13-15. The power to zone constitutes
the exorcise of the county's police power and must be reasonably related to public health,
safety, morals or general welfare.
As the enabling law of county zoning, HRS Section 46-4 delegates the zoning
power to the counties within the framework of the general plan. The zoning power
within each county is recognized by HRS Section 46-4 as the tool used to best put the
general plan into effect in an orderly manner. Through the zoning power, the counties
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'Ikukazaki Yeh & Moore
ATTORNEYS ATIwW '
A limned l.iebiliry [aw Comgny
may regulate the areas where trade or business maybe conducted, particular uses maybe
subject to special restrictions, the location of roads, schools, and other regulations
necessary and proper to permit orderly development consistent with the deference given i
to the constitutionally-rooted police power, HRS Section 46-4 provides that the zoning
power granted therein "shall be liberally construed in favor of the county exercising ~
them..." i
As set forth above, HRS Section 302A-1184 is clearly devoid of any charter
school exemption from applicable county laws. Thus, applicable county zoning law is
effective as to the location and establishment of charter schools.
Under the County of Hawaii's Zoning Code, the proposed use by WOL is
prohibited in the absence of a special permit. Section 25-4-3, provides that for each
zoning district, the permitted uses listed in the regulations for such district may be
established within that district after compliance with specific restrictions of the district.
Any use not listed among the permitted uses is a prohibited use within that district.
Section 25-4-4, Hawaii County Code. ~
Section 25-5-72(d) of the Code lists the uses permitted in the agricultural zoned
district. Schools are not listed as a permitted use in the agricultural district, and are thus,
prohibited under Section 25-4-4. WOL must establish its school in an appropriate zoning ~
district unless it obtains either of the discretionary permits described below. It should be
noted that Section 25-5-72 provides that a school maybe permitted in the agricultural
district if a special permit is issued for such use.
It should also be noted that, in regard to applications for special permits, the ~
County of Hawaii Planning Commission has also adopted rules that contain health and
safety criteria for the issuance of a special permit that are similar to the LUC's rules.
They require a determination of the potential adverse affects upon surrounding property
owners and the issue of whether the proposed use will unreasonably burden agencies to
provide sewers, roads and streets, drainage and police and fire protection. Rule 6.3 of the
Planning Commission Rules.
The Zoning Code's use permit provisions also focus on potential health and safety
impacts to public agencies and surrounding community and apply in cases such as this
where a special permit has not been obtained for a proposed use in the agricultural district
which use is otherwise impermissible. Section 25-2-61(a) provides that a school maybe
permitted within the agricultural district only if a use permit is obtained from the
Planning Commission.
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Tsukazaki Yeh & Moore
errowrerseruw ~
~u~~eww~gi..c~y
Section 25-2-61(c) provides that a use permit shall not be required if a special
permit has been obtained for such use. In the present case, a special permit has not been
obtained for the establishment of WOL's charter school. Accordingly, a use permit is
clearly required under Section 25-2-61 prior to the permissibility of WOL's charter
school.
Zoning Code provisions relating to the plan approval process also appear i
applicable to the WOL's proposed use. Section 25-2-71(f) provides that plan approval
may also be required by the conditions of a use or special permit or other land use
approvals. In the plan approval process, the Planning Director is required to review the
proposed development in relation to surrounding property, streets, traffic, and community
characteristics and may deny or condition plan approval if the proposed development will
create unreasonable health and safety risks.
In regazd to the plan approval requirement, we note that on October 30, 2001, the
County of Hawaii sent to the DOE a summary of the rules and regulations that charter
schools are required to follow and en•oneously provided that charter schools did not have
to obtain plan approval in the agricultural district. We believe this conclusion is incorrect
because of its absolute terms and needs to be corrected immediately to state that plan
approval may be required under certain circumstances.
Conclusion
A special permit required under both the laws of the State and the County of
Hawaii is directly related to health and safety. Morever, WOL is not exempt from i
compliance with the zoning laws of the County of Hawaii. A charter school is not a
permissible use in the agricultural district in the absence of a special permit. The special
permit, in this instance, must be approved by the Planning Commission and the LUC. ]n
the absence of a special permit, a use permit is required by the County's Zoning Code
prior to establishment of a school in the agricultural district. Whether via a condition of a
special permit or a use permit, plan approval should also be obtained, along with such
permits that are necessary in order to comply with applicable health and safety
requirements that are administered by appropriate agencies.
A refusal by the County of Hawaii to exercise lawful jurisdiction in this matter
will expose Ala Loop residents and others to an unreasonable risk of harm, including but
not limited to, safety hazazds inherent in substandard conditions of Ala Loop road, as
already recognized by the County of Hawaii. ~i
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Tsukazaki Yeh & Moore
ATTORNEYS ATLAW '
A Limi1CA li~bllity Law Canpny
Request for Revlew
We respectfully ask that your office review the above with the Mayor and the
Planning Department and reconsider the position previously taken by the County.
Immediate action should also be taken in informing those concerned with the
administration of charter schools and WOL's charter school that the County's prior
interpretation of Section 302A-1184 was erroneous or incomplete.
Please let me know by August 22, 2003, if the County will be reassessing its
position or if it will be necessary for the Ala Loop residents to seek relief from the
appropriate agency or court in enforcing the obligations of the County and WOL to
comply with the law.
Very truly yours,
TSUKAZAKI YEH & MOORE,
A Limited Liability Law Company
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THOMAS L. H
R. BEN TS
Attorneys for
Ala Loop Community ssociation
RBT:nI
xc: Ala Loop Community Association
Christopher J. Yuen, Planning Director
James Y. Ar~akaki, Chairman, Hawaii County Council
Representative Eric Hamakawa I
Senator Russell Kokubun
Anthony J.H. Ching, Executive Officer, Land Use Commission
Diane Erickson, Esq. i,
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Stephen K Yima"htro
Mayor
~~ii77'~ ~,•w M +
~cLIIIIII~~I' II~ ~2I~Utiti ~
PLANNING COMMISSION
25 Aupunl Sneu, Roos 109 • lalq Hnnii %7r0~1252 'i,
tenet %t.ezes ~ ttwe~ 9st.~ts
CERTIFIED MAIL i
2 416 228 819
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July 27, 1995
Greg Lee, Trustee
Mountain View Congregation of
Jehovah's Witnesses
260 Kaiuhtni Street
Hilo, HI 96720
Dear Mr. Lee:
Special Permit Application No. 95-3 ~
Applicant: Mountain View Congregation of Jehovah's Witnesses
Request: Establishment of a Church Meeting Facility
Tax Mao Key: 1-7-8:25 ~
The Planning Commission at duly advertised public hearings on June 7, 1995 and July 13, 1995,
considered the above-refetentxd request for a Special Permit in accordance with Chapter 205-6,
Hawaii Revised Statutes, sad Rule 6 of the Planning Commission, to allow the estabhshment of a
church meeting facility oa approximately 1.145 acres of land situated within the Staze Land Use
Agricultural District approxtmately 1,250 feet west (Keaau) side of the Volcano Road-Ala Loop
intersection, Olaa Reservation Lots, Puna, Hawaii.
The Commission voted to deny Special Permit No. 905 based on the following findings:
In considering a Special Permit for any proposed use, Rule 6 of the Planning i
Commission relating to Special Pen~its requires that such action conform to the following
guidelines:
a. Such use shall not be contrary to the objectives sought to be accomplished by
the Land Use Law and Regulations;
b. The desired use shall not adversely affect surrounding properties;
c. Such use shall not unreasonably burden public agencies to provide roads and j
strcets, sewers, water, drainage, school improvements, and-police and fire
protection; i
d. Umtsual conditions, trends and needs have arisen since the district boundaries
and regulations were established;
sreg Lee, Trustee
Mountain View Congregation of
Jehovah's Witnesses
Page 2
e. The land upon which the proposed use is sought is unsuited for the uses
permitted within the district;
f. The proposed use will not substantially alter or change the essential character
of the land and the present use;
g. The request will not be contrary to the General Plan and official Community
Development Plan and other documents such as Design Plans;
In addition to the guidelines detailed above, the Planning Commission must also find
that the proposed use:
a. Is an unusual and reasonable use of land situated within the Agricultural or ~
Rural District, whichever the case may be; and
b. ; Would promote the effectiveness and gbjectives of Chapter 205, Hawaii
Revised Statutes, as amended.
While a proposed use must meet all of these criteria for approval by the Planning
Commission, a denial may be made upon a finding of conflict with any one of these criteria. ~
The proposed use will not promote the effectiveness and objectives of Chapter 205, i
H.R.S., as amended. Chapter 205, H.R.S., otherwise known as the State Land Use Law,
provides the basic legal framework of land uses in the State of Hawaii and assisted in the
implernetttadon of the long-range land use objectives of the State and Counties. The intent of
these statutory provisions is to preserve, protect and encourage the development of lands in
the State for those uses to which they are best suited is the interest of the public health and
welfare of the people in Hawaii. In the case of the Agricultural District, the intern is to
preserve or keep lands of high agricultural potential is agricultural use.
At the County level, these broader statewide objectives are articulated through the
County General Plan. In that respect, land use and its consistency wiffi the goals, objectives
and policies of the General Plan will also promote the effectiveness and objectives of
Chapter 205, H.R.S.
The granting of this particulaz request at this particular location would be inconsistent
with the objectives to be sought to be accomplished by the Land Use Law and Regulations as
well as the County General Plan. A goal of the General Plan states that the County shall ~
"Designate and allocate land uses in appropriate proportions and mix and in keeping with the
social, cultural, and physical environments" while maintaining a policy to ..encourage
the development and maintenance of cotnmunides meeting the needs of its residents in
balance wtth the physical and social environment."
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The applicants propose to establish a church meeting facility within an area serviced I~
by a winding, substandard roadway. This portion of Olaa Reservation Lots is serviced by
Ala Loop Road, aCounty-maintained roadway having a pavement width of only 12 feet
within a 50-foot wide right-of--way. The increase in traffic along this substandard roadway
generated by the proposed church use would adversely affect surrounding property owners
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.ireg Lee, Trustee
Mouwain View Congregation of
Jehovah's Witnesses
Page 3
by attracting traffic along a roadway in which the existing pavemem width is not sufficient to
accommodate two-way traffic. The Commission would be remissed in its duties were it to
approve such a use which would attract traffic along such inadequate, and possibly
hazardous, roadways. The narrow and winding nature of Ala hoop Road and the frequent
nightly meetings to be held at the church only add to the concerns regarding the adequacy of
Ala TROP Road• The State Department of Transportation has indicated that access to the ~
subject property directly from the Volcano Highway will not be permitted. This access
restriction rs further enforced by a 10-foot wide planting screen easement located along the
property's entire Volcano highway frontage. Therefore, approval of the Special Permit
application would not be in balance with the physical environment of this portion of Puna.
The desired use will unreasonably burden public agencies to provide roadway and
safety protection improvements. As in previous applications for similar types of uses,
applicants were required to provide necessary roadway improvements to ensure a mitrimum
pavements width which would accommodate two-way traffic. As discussed above, the
existing condition of Aht Loop Road cannot support tote proposed church use. To require the
applicant to widen Ala Loop Road over its 4,000-foot-plus length would be financially
prohibitive and unreasonable. Approval of the proposed use, and the potential for similar
uses along these types of substandard roadways, would create hazardous conditions which the
County must recognize and resolve, thereby burdening governmental agencies to address
such problems in a reactive, and not pro-active, manner: The Puna District has many miles
of substandard roadways which are usable to accommodate the existing traffic levels upon
' them. It would not be in the best interest of the County to support an intensification of land
use in areas unable to cope with such uses.
This denial recommendation is also based on the potential cumulative impact of
similar requests along this substandard roadway should this Special Permit be approved. The
proliferation of non-residential/agricultural uses along the substandard Ala Loop Road would
eliminate planning options available to the County to ensure the safety and well-being of its
residents and the general public. The Commission has bcen consistent is its efforts to ensure
that uses approved through the issuance of a Special Permit are provided with basic facilities
and services to accommodate the approved use. Should this policy direction be abandoned
with the approval of this request, smmlar requests along Ala Loop Road or other substandard
roadways must be favorably considered, irtegardless of the cumulative impacts a
concentration of such traffic-generating developments may have on substandard roadways.
Such action cotild adversely affect lands county-wide and frustrate the County's efforts to
manage such urban-types of growth to ensure adoquate public facilities and services for all.
With the discussion above, approval of the request would be in direct conflict with a goal of
the Land Use Element of the General Plan to "Designate and allocate land uses in appropriate
proportions and mix and in keeping with the social, cultural, and physical environments of
the County" while maintaining a policy to "....encourage the development and
maintenance of communities meeting the needs of its residents in balance with the physical
and social environmem."
Based on the above considerations, it is determined that the establishment of a church
meeting hall at this particular location would not promote the effectiveness and objectives of
the State Land Use Law. It is, therefore, decided that this Special Permit application be
denied.
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.ireg Lee, Trustee lil
i Mountain View Congregation of
Jehovah's Witnesses
Page 4 I
As stated in Rule 6-9, "The Planning Commission's decision is appealable to the Third Circuit
Court. "
Should you have any questions on this matter, please feel free to contact Alice Kawaha of the
Planning Department at 961-8288.
Sincerely,
Wilton K. Wong, chairman
Planning Commission ~
AK:syw I
I.Mount02.PC ,
ec: Honorable Stephen K. Yamashiro, Mayor ~ i
Planning Director ~
State Land Use Commission
Departtent of Public Works
Department of Water Supply
Corporation Counsel j
' Plan Approval Section
Mr. Ricky Kamimura/Mr. Nathan Wong
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Tsukazaki Yeh & Moore R. BEN TSUKAZAKI
ATTORNEYS AT LAW rbt®Iava.net
A Limited Liability law Company THOMAS L.H. YEH
dy®lava.na I
85 W. Lanikaula Street Hilo, Hawaii 967204199 MICHAEL W. MOORE
TW<phone: (808) 961-0055 FAX (808) 969-1531 mmoo¢®Iava.nu
September 2, 2003
Lincoln S. T. Ashida
Corporation Counsel
County of Hawaii
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Re: Operation of Waters of Life Charter School
Ala Loop Community Association
Deaz Mr. Ashida:
In response to your letter dated August 21, 2003, in which you stated you were ii
unclear as to the source of the information regarding the County's previous determination
as to HRS Section 302A-1184, as it relates to exempting charter schools from State land
use district laws.
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As to the sources of information referred to in my August 14, 20031etter to you, I
have enclosed a copy of the County's managing director's letter dated October 30, 2001
to Chuck Higgins, Public Charter School Specialist III, with a compilation of rules and
regulations for charter schools. In addition, I have enclosed a ropy of the Planning
Director's July 21, 2003 letter to my client, which states that charter schools located in
the State Land Use Agricultural District do not have to obtain special permits.
As to the former, please note that pazagraph " 3" on page one states: I'
"Charter schools are not exempt from the County Zoning Code." ~i
This comports with the legal azgument tendered in my August 14, 2003 letter to you.
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Enclosure (2)
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Lincoln Ashida
Page 2
September 2, 2003
Please let me know if I can provide you with additional information. I remain
available to discuss any questions or concerns you may have regazding this matter and
look forward to hearing from you.
Very truly yours,
TSUKAZAKI YEH & MOORE,
A Limited Liability Law Company
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THOMAS L. H
R. BEN TSUKAZ i
Attorneys for
Ala Loop Community Association
RBT:nI li
Enclosures
xc: Ala Loop Community Association
James Y. Arakaki, Chairman, Hawaii County Council
Representative Eric Hamakawa
Senator Russell Kokubun
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Harry Kim
~,yer . ~ Dixie Kaetsu
1, fj idweinBDir•aar
• Peter T. Young
~wb M+~•d~s Quota
~outttp of ~a~boai`i
25 Aupuni 84eet. Aaom 213 • Nib, HaxMi 9671p.1131 • (M8) %1.8211 • P~x(80i) %14353
KONA: 754786 xmidoi HiBhary, a.w 103 • a.iltu-Kao•, Hsw•i'i %740
(808)329-0228 • Frz(tOh716,S669 Iii
October 3Q 2001 I
Chuck Biggins li
Public Charter School Speaalist III
DOE/PAO
P. O. Box 2360
Honolulu, Hawaii 96804
Dear Mr. I~Ilggins: II
Attached is a compilation of county and state colas and regulations that charter schools are
required to follow. Please duplicate sad distribute to charter schools located in We County of
Hawaii.
If you have any questions, please call me.
Sincerely,
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C'~
Dixie Kaetau I
Managing Director
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CHARTER SCHOOLS AND LAND USE REGULATIONS
The following provides a summary of state and wunry land use regulations with respect to Charter
Schools purauent to §302A-1184 HRS, §205-6 HRS and Hawaii County Code Chapter 25 (Zoning Code).
1. Baclrgronnd: Chapter 302A of Hawaii Revised Statutes sets
forth a statutory scheme for the establishment
and operation of charts schools. The purpose of
the Act is to inaresae the IIextbiliry and
autonomy at the school level by allowing
existing public schools and now schools to be
designated as new charter schools.
2. Appltcablllty o[ State Lawa: Charts schools are exempt firm state laws,
• except those relating tb haalt6 and safety and a '
few other exceptions (Le. building, fire, and
eatdtation codes). The major effect of this
exemption is that Charter Schoob located in
State Lead IIse Agrlcaltaral DhtMcte do not
have to obtain a Special Permit.
3. Connty ZoNng Code: Charter schools are not exempt 6rnn the
County Zoning Code.
4. Charter Schools ABowod In These Plan Approval is an administrative review of
Zone DlsMcts with Plan Approval: techtdcal details like packing, access, and trafLc
circulation, and is naatsily die 9u+~Y by ~
Phuming Departrneat without any public review,
• CN (neighborhood commeroiat)
• CV (village commercial)
Cci (general eommercia!)
• CDH (Downtown Hilo)
• MCX (mixed industrial-commercial) '
• RCX (residential-commercial)
5. Charter Schools Allowed to These Uw Permits are granted by the Planning
Zone Districts with a Use Permit: Commission and requiro submission of an
~ . , application and publio hearing.
• RS (single-fium7y residential)
• RD (double-family residential)
• RM (multi-family residwtial)
• RA (residential-agricultural)
Planning Departrnent, County of Hawaii t)ctober 22, 2001
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6. Charter Schools ue Nat Permitted In Chatter schools are not allowed in the following
These Zone Districts: districts:
• V (visitor)
• ML (limited industrial)
. • Mt3 (general industrial)
• O
7. State band Use Conservatlon DIsMMs:
The Plattning Department shall defer to the
Depattmrnt of Land and Natural Resources
(DLNR) as to whether a conservation district use
permit is naxseary to operate a charter school in
a Consetvati~ District.
8. Special Management Area (SMA): Charter acbools located in a delineated SMA, are
(applicable to delineated shoreline subject to SMA regtdrammta in all zoning
locatlona) ditAticte. A ohMer school in the SMA will need
a Major SMA Permit if the improvemmta will
cost more than S125,000. Major SMA Permits
ate granted by the PlatmiriY Cotamissiaa. If the
it»provementa are lass thaa 5125,000, the ~
charter school will aced a Minor 3MA Permit,
which is gta~ed by the Plamung Director.
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Planaing Deparrmeat, County of Hawaii October 22, 2001 ~
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PLANNING DEPARTMENT
3UMMARY OF PERMIT REQUIREMENTS FOR CHARTER SCHOOLS '
This bbb ony pats permib adminkterod by the Covey Plenning Department Charter schools have
s4nltar pertnlt requiremenb t0 oUrer ectroob, except h the Agricultural District
I rivab it
Zonln Dbtrld Sehoola
RS
' RD
RM
RA
RCX ~
CN B
CO
CV ! ;
CDH
ML
MO
V
LU Com BWR ~
FA M SLU C
FA or rtran
A PertrYtted, ra permhs
s PemYlbd, plan approval
C Regrdra wa pamr3 or apecbl permit
X Not pemYttsd
B' SubJed to dtredore Nbrprebtlon
BWR Defer b dacblar by the Boats d t.arxf and Natural Raeowcea
When boated in are SMA SMA roqu4amarde apps to charter ea,ow even m ab stb land Use ApAwltural Dbtrict
The PbnMrq DaparUnant can adobe on the axreM zonhq of erry alts and whether tt b 4f are Sh1A.
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wugrrst, 2001
COUN'T'Y OF HAWAII
DEPARTMENT OF PUBLIC WORKS
BUILDING DIVISION
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GUIDELINES FOR RTER SCHOOLS
L Buildine Permits
Igquired Permits
Proposed Construction Buildine Plumbin¢ Electrtcal
,
Use ofexisting school facility, no change Only for Only for Only for
in capacity new work new work new work
Conversion of an existing building into a Yes Only for Only for i
chatter school new work new work
Completely new facilities or additions Yes Yes Yes
Concrete slab only for driveway or parking No No No it
IL Submittal ReauiremenU for Permits
_ Throe (3) sets of plans drawn to scale showing site plan, elevations, sections and
details
_ Building plans must be stamped by a Hawaii licensed architect or structural
engineer
_ Site plan drawn to scale showing building layout on property, parking, driveways,
landscaping, retaining walls and adbacks from propeRy line
_ Separate plan sheets for electrical work and mechanical work (air
conditioning/heating, plumbing, septic or sewn system, range hoods, etc.). For
new facilities these plans are genaally stamped by an electrical engineer and
mechanical engineer, respectively. ,
_ Grading plan if extensive (more than 100 cubic yards) excavation or fill is involved
_ When required a separate plan for fue alarm and fve sprinkler system with stamp
~ _ ADA (Americans w/Disabilities Act) compliance certification form
_ When required the special inspection form
-When installing septic systems a Dept.of Health approval letter to construct the
individual wastewater system (1WS)
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L_n Building Desien Repuirements
_ Building design is required to follow the following sections of the1991 Uniform
Building Code:
Chapter 5 -Occupancy Requirements
Chapter 8 -Requirements for Group E (Educational) Occupancies
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Ham&m Christopher J. Yuen ~ I,
? Ulr•nsr I
Roy R. Takemao
~r oyuer a..~a.
KLDlitt~~7 A~ fU21tt
PLANNIIVG DEPARTMENT
I01 Pwahi Street. Suite 3 • Hilo, Hawaii 96720.3043
(808) 961-8288 • Pax (SOB)961-8742
July 21, 2003
Ala Loop Homeowners
P.O. Boxes
Hilo, HI 96720 'i
Dear Representative of Ala Loop Homeowners:
SUBJECT: Ingahy Regarttiag Charter School on Ala Loop
TNII{: 1-7-008:003 Olaa Reservation Lots. Pena. Aawaii
We have received your letter dated July 11, 2003 regarding the Waters of Life Charter it
School in escrow to purchase the old Sunshine Farm property on Ala Loop.
The Planning Department has received numerous inquiries regarding the operation of
charter schools within the State Land Use Agricultural District in regards to H.RS.
§302A-1184, which exempts charter schools from state laws, except those relating to
health and safety, and a few other exceptions. Based on this law and a legal opinion
received from the County Corporation Cotmsel, we are exempting charter schools from
state laud use laws not expressly related to health and safety.
The major effect of this exemption is that charter schools located in the State Land Use I~
Agricultural District do not have to obtain special permits. Normally, a school in the
agricultural district would Heal a special pemrit with a process that requires notice to
nearby landowners and a public hearing.
Charter school facilities may need other approvals and petrnita, including those related to
building, fire, and sanitation.
The law exempting the charter schools is open to interpretation and the courts have the
final say. You, as homeowners concemal about the traffic impacts this operation may ail
have on your community, have the right to take this matter to court to have a judge decide i
if this charter school Heals a special permit.
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Ala Loop Homeowners
Page 2
July 21, 2003
If you have any questions, please feel free to contact Jeff Darrow at 961-8288.
Sincerery,
2ti
CHRISTOPHER J,
Planning Director
]WD:pak
v~»vwin6Vyetriena+u.V+taw~ClunuSthoo~.aoc
cc: Mayor Harry Kim
Ms. Dixie ICaetau, Managing Director
Mr. Andy Levin, Executive Assistant
Mr. James Arakald, County Councilman
Mr. Lirre;oln Astride, Corporation Counsel
Planning Commission Section
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