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HomeMy WebLinkAboutCOM 0348.001 2002-2004 M<vor x~ ~o;?'~~^-'.'••4', Lincoln S.T. Ashida Harry Kim Corporation Counsel Mayor Gerald Takase . ° Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 (808) 961-8251 Fax (808) 961-8622 September 18, 2003 n O n cn R. Ben Tsukazaki, Esq. z O ~ Tsukazaki Yeh & Moore ~ 85 W. Lanikaula St. Hilo, HI 96720-4199 ~ 2 ~ {..a i Dear Mr. Tsukazaki: : " a RE: Waters of Life Charter School/Ala Loop Community Association Our Entry No.: WRK 03-5847 Thank you for copying me on your letter dated September 16, 2003, to Hawaii County Council Chair James Arakaki, concerning the proposed Waters of Life Charter School in the Puna district. In your letter to the Council, you indicate you wrote me letters on behalf of your client on or about August 14, 2003, and September 2, 2003, and indicate that our office has not "to date" "responded to (your) specific legal points." I believe you fail to acknowledge our written response to you dated August 21 2003. Further, you and I both understand we have been communicating telephonically regarding this matter, and I have advised you of the present position of our Planning Director, which has remained consistent and unchanged. In fact, you were very cordial in advising me you may be seeking legislative intervention in this matter, evidenced by your written request to the Hawaii County Council. Further, you were advised that despite the apparent disagreement with respect to the authority of the County Planning Department over charter schools, other County departments and the State were actively involved in meeting with one another, as well as meeting and conferring with representatives of the Waters of Life Charter School. Finally, we spoke about the efforts our Hawaii County Council Chairman James Arakaki, in his coordination of efforts to have our state lawmakers address various aspects of this state statute at their next legislative session. e CoMM, Mo. 9•~ Ref. Tor Ref. r~~ R. Ben Tsukazaki, Esq. September 18, 2003 Page 2 So there is no ambiguity as to the present position of the Planning Director, and having received express permission from the Planning Director to respond to your legal concerns, we address your specific questions. Needless to say, interpretation of Section 302A-1184, Hawaii Revised Statutes, as amended (hereinafter "HRS") has been the subject of significant debate. The legislative history of this section provides limited guidance. Recently, the Office of Information Practices has concluded this statutory provision exempts charter schools from the State's "sunshine law." Litigation concerning the funding due charter schools has also presented itself in the media. The County of Hawaii has also evaluated whether its County ordinances have force and effect in the face of what may be this pre-emptive state statute. Our evaluation continues as new, unforeseen issues develop. We resolve these issues after careful research and consideration of the law, together with considerations of fairness. At the heart of your client's argument is the contention that pursuant to HRS Section 302A-1184, there are "no express exemption(s) from or preemption of county land use laws and regulations." The County presently maintains that notwithstanding the fact there is no express written exemption, the County's planning ordinances are nonetheless exempted in the present case, given the zoning of the Waters of Life property. As our Planning Director has correctly pointed out in his letter of July 21, 2003, to the Ala Loop Homeowners group, those permits related directly to public health and safety, such as building, fire and sanitation, are required under the law. To this end, the Department of Public Works, Fire Department, and State Department of Health have been working with representatives of the Waters of Life Charter School, to ensure compliance. With respect to whether a charter school in the State Land Use Agricultural District requires approval from the County Planning Department, the answer is no. As the Gharter Schools and Land Use Regulations guideline you cite in your September 2, 2003, letter points out, "Charter Schools located in State Land Use Agricultural Districts do not have to obtain a Special Permit." Your reliance on the third numbered regulation which states, "Charter schools are not exempt from the County Zoning Code," is admittedly ambiguous. Although this statement is generally true for charter schools in non-agricultural districts, it is not true for charter schools in State Land Use Agricultural Districts. As you know, the Waters of Life charter school property is in the State Land Use Agricultural District. R. Ben Tsukazaki, Esq. September 18, 2003 Page 3 The Planning Director has indicated a willingness to meet with you and your clients in the very near future to further discuss this very novel issue. The County is always willing to listen to differing positions in an effort to arrive at a fair and just outcome. I would be more than willing to arrange this meeting. Please contact me at your earliest convenience. Thank you for your kind attention to this matter. I look forward to hearing from you shortly. Very truly yours, l~ " " - LINCOLN S. T. ASHIDA Corporation Counsel cc: HonArable Harry Kim, Mayor onorable James Y. Arakaki, Hawaii County Council Christopher J. Yuen, Planning Director Judge Sandra Song Representative Eric Hamakawa Senator Russell Kokubun S: Departments/Corporation Counsel/LSA Misc. Corresp./Letter to B. Tsukazaki re charter schools 9-18-03/LSAmr