HomeMy WebLinkAboutCOM 0348.012 2002-2004 Lincoln S.T. Ashida
Harry Kim ~6iu, Corporation Counsel
Mayor i.
Gerald Takase
;r,., • Assistant Corporation
d%'~~°j 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
November 25, 2003
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Honorable James Y. Arakaki pn o
Chair, Hawaii County Council cr, c ~
25 Aupuni St. z~ - rn
Hilo, HI 96720
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Dear Chairman Arakaki: T -
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RE: County of Hawaii v. Ala Loop Homeowner, et. al. _
CIV. NO. 03-1-0308
Our Entry No.: LIT 03-429
Thank you for your memorandum dated November 18, 2003, requesting
information concerning the above case.
Enclosed is a copy of the Complaint filed by the County of Hawaii in the above
case.
Enclosed also is a copy of the Attorney General's response to our request for an
opinion.
With respect to legal advice given the Department of Public Works and Planning
Department concerning temporary structures and/or occupancy permits, none
has been dispensed. As I understand it, the Waters of Life Charter School has
yet to formally submit an application for such permits, contrary to Mr. Yeh's
representations.
Please let me know if you require further documentation.
Thank you.
Very truly yours,
348.2
LINCOLN S. T. ASHIDA Comm. Np,
Ref. Topreee~t
Corporation Counsel Ref. Date
Encls.
S: Litigation/COH v. Ala Loop/Corresp./Letter to Council 11-20-03/LSAmr
2xiwu
,
LINCOLN S. T. ASHIDA 4478
Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Tel. No. 961-8251
Fax No. 961-8622
E-mail: I,ashida~a co.6awaii.hi.us
Attorney for Plaintiff County of Hawai i
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal
Corporation of the State of Hawai i, CIVIL NO.
Plaintiff, COMPLAINT FOR DECLARATORY
RELIEF; EXHIBITS 1-3; SUMMONS
vs.
ALA LOOP HOMEOWNERS, an
unincorporated association,
and
WAI'OLA WATERS OF LIFE
CHARTER SCHOOL, a public
school organized under the laws of
the State of Hawai i, John Dces
1-10, Jane Dces 1-10, Doe
Partnerships 1-10, Doe
Corporations 1-10, and Doe
Entities 1-10,
Defendants.
S: Utigalla?COH v. Ala l.oop/Complalnt 11-13-03/LSArtv
COMPLAINT FOR DECLARATORY RELIEF
Plaintiff COUNTY OF HAWAII, a municipal corporation of the State of
Hawaii (hereinafter "County") by and through LINCOLN S. T. ASHIDA,
i ~ 1 ~
Corporation Counsel for the County of Hawai i, hereby states and alleges this
Complaint for Declaratory Relief against Defendant Ala Loop Homeowners, an
unincorporated organization (hereinafter "Ala Loop Homeowners"), and WAI'OLA
WATERS OF LIFE CHARTER SCHOOL, a Hawai i public school organized
under the laws of the State of Hawai'I (hereinafter "Waters of Life") as follows:
I. THE PARTIES
1. County is a municipal corporation of the State of Hawaii, duly
constituted under Chapter 46, Hawai i Revised Statutes, as amended
(hereinafter `HRS'), whose primary place of business is 25 Aupuni Street, South
Hilo, County of Hawai i, State of Hawai i.
2. Defendant Ala Loop Homeowners is an unincorporated
organization of homeowners and business proprietors, either living or transacting
business on or near Ala Loop, Puna, County of Hawai i.
3. Defendant Waters of Life is a Hawaii public school, organized
pursuant to HRS Sections 302A-1181, et. seo., whose business address is 17-
715Ala Loop, Kurtistown, Puna, County of Hawai i.
II. JURISDICTION AND VENUE
4. Jurisdiction is proper pursuant to HRS Sections 603-21.5 and
632-1, as an actual controversy exists, as described herein, between the County
of Hawaii, Ala Loop Homeowners, and Waters of Life. Specifically, Waters of
Life contends they are exempt pursuant to HRS Section 302A-1184 from
obtaining any and all statutorily required planning and occupancy permits. The
Ala Loop Homeowners contend both a special permit and County use permit are
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required. The County maintains at minimum, a County use permit pursuant to
Chapter 25, Hawai i County Code (hereinafter "Code") is required.
5. Venue in the Thins Judidal Circuit Court, State of Hawai i, is proper
pursuant to HRS Section 603-25, as County's daim arose in the Third Circuit,
State of Hawaii.
III. STATEMENT OF THE CASE
6. In 2001, Waters of Life began operation of new century charter
schools in two locations in East Hawai i. One school was in the Nanawale
Subdivision, County of Hawai i, and the other was in the Hawaiian Acres
Subdivision, County of Hawai i. Upon teaming these schools were operating in
the urban and agricultural districts without proper authorization or permits, the
County Planning Director, CHRISTOPHER YUEN (hereinafter "Yuen") issued
citations to Waters of Life, pursuant to his authority under Chapter 25 of the
Code.
7. At the time the citations were issued, Yuen was unaware of HRS
Section 302A-1184, which provides in pertinent part that:
Schools designated as new century charter schools shall be
exempt from all applicable state laws, except those regarding:
(1) Collective bargaining under chapter 89;...
(2) Discriminatory practices under section 378-2; and
(3) Health and safety requirements.
8. Upon further evaluation by Yuen, the citation issued on the
agriculturally zoned property was dismissed. The citation issued on the urban
zoned property was maintained (this citation alleged Waters of Life was required
to obtain a County use permit, pursuant to Chapter 25 of the Code).
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9. Prior to the citation being adjudicated, Waters of Life ceased
operation of their school in the urban district, and the citation and issue at the
time was rendered moot. - ,
10. Yuen then wrote a letter regarding charter schools generally, which
stated in pertinent part that charter schools did not need to obtain a special
permit in districts zoned as State Land Use Agricultural, but a County use permit
was required for districts zoned Urban (Exhibit 1).
11. In the summer of 2003, Waters of Life ran an advertisement in the
Hawai iTribune-Herald, indicating their intent to open a charter school on
property formerly known as the Sunshine Farm, on Ala Loop, Kurtistown.
12. The subject property formerly known as the Sunshine Farm is
zoned State Land Use Agriculture.
13. Waters of Life did not obtain (and has not yet obtained) a special
permit for the operation of its school, nor a County use permit.
14. Waters of Life maintain they are exempt from the permitting
process, pursuant to HRS Section 302A-1184, which essentially exempts charter
schools from all laws with the pertinent exception of laws concerning public
health and safety.
15. Ala Loop Homeowners maintain charter schools are subject to both
the special permitting and use permitting requirements under State and County
law (Exhibit 2).
16. County maintains that at minimum, charter schools are required to
obtain County use permits pursuant to Chapter 25 of the Code (Exhibit 3).
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17. Waters of Life will further allege and maintain that based upon
representations made by Yuen and County (specifically the aforementioned letter
authored by Yuen advising that charter schools need not obtain a special permit
in districts zoned as State Land Use Agriculture), they relied upon said
representations in the acquisition of the Sunshine Farm property, and they have
a vested right in continuing to develop this property for their school.
18. As this matter presents issues of first impression and has
implication beyond the present controversy between the parties, Plaintiff County
herein seeks declaratory relief from the Court, with respect to an interpretation of
HRS Section 302A-1184, and whether a special permit and/or County use permit
are required of new century charter schools.
WHEREFORE, Plaintiff County prays as follows:
A. That this Honorable Court exercise jurisdiction over the present
case and controversy;
B. That this Honorable Court declare that new century charter schools
are exempt from obtaining a State special permit, but are required
to obtain a County use permit, pursuant to Chapter 25 of the
Hawai i County Code;
C. That this Honorable Court declare that Waters of Life did not, and
has not relied to its detriment on representations made by the
County, and that they have no vested right in the continued
operation of their school at the Ala Loop property, and that any
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continued operation of the school is at their own expense and peril,
and subject to them obtaining a County use permit; and
D. That this Honorable Court grant Plaintiff County its costs, attorney's
fees, and such other and further relief as may be deemed just
under the circumstances.
Dated: Hilo, Hawai i, November 14, 2003.
COUNTY OF HAWAII, Plaintiff
LINCOLN S. T. ASHIDA
Corporation Counsel
Attorney for County of Hawaii
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JUL-11-2003 FRI 02:43 Ph p, 01
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May 14, 2001 Post-It"FazNote 7671. oac .rr,~ a3 ? -
co.
Ms. Ku Kahalcalau ~ • J
Kanu O Ka Aina New Century P S fe` ~ Fv; ~
PO Box 398
Kamuela, HI 96743
Dear Ms. Kahakalau:
SU73.TDCT: CHARTER C LS
I am writing because the Planning, c ent has been contacted by a number ofDOE-
approved charter schools which ve r ested advice on the permits they need if they
locate is various areas. We have een vising charter schools that to locate within the
State Laad Use Agricultural Distr must obtain a special permit wader H.RS. .
§205-6, This is the normal prose ' re activities such as schools that arc not normally
allowed in the Agricultural Distri
The Planning Department has rec by eived a legal opinion from the County
Corporation Counsel that a sped per is not needed for a charter school in the
Agriwltural District because of fI S. 02A-1184, which exempts charter schools from
some laws. If you do not [mow w ctlt our present or proposed site is withia the State
Land Use Agricultural District, pl se tact the Planning Department. Please be atv~are
that your school facilities may nee ~ of approvals and permits, including those rotated
to building, fve, and sanitation.
Corporation Counsel has advised th he county zoning laws within the State Land
Use Urban District still apply to c e hoots. This includes the requirement for a use
permit in residential zones. Again .the arming Department can advise you whether you
are within the Urban District and a ou a permitting requirements.
Although the Planning Deps;tmea , '1 following the advice of Corporation Counsel,
it is possible that other persons wh m of want your school to locate in its chosen area
p~pv ~ a goat
EXHIBIT 1
JUL-11-2003 FR[ 0243 Ph , P, 02
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. .
Ms. Ku Kahakalau
f .Peso 2 .
' May 14, 2001
can challenge this legal opinion 'on Counsel advises the County on legal
mattora, lint We law exempting or schools is open to interprotation and the courts
have the Rnal say, It is possiblo at s matter is takon to caurk the judge could decide
that a charter school needs a spec From the Plaacdag Dcpartmont's exporioncc;
the persoae most likely to make a cage against the exemption of charter
schools from tho speaa! permit tho immediate neighbors. For thin [easoa--and•
- because it ie the right thins to do ass of legal Issues-I urge you to work with your
neighbors •about their concerns, n ugh you maybe exempt from obtaining the
spet9al permit.
Siaccr~c[yj
C//~
CIiRISTOPIiLR 7.
Planning Director
CTY:pak
wpwln60K~rislCharia Schools .
ec: Mayor I3arty Kim •
Mr. Daa Sakai, District Su dent
Ms. Dixie Kaetsu, D nor
' Mr. Andy I.evia, 8xecutiv t
sukazaki Yeh 8c Moore 1 R B~+TS~~
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~ephooe (t08) 961-0035 FAX (BOB) 969-1331 miooo~e®4r~aet
September 16, 2003
James Y. Aralcaki, 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 regazd 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 faz is the
issue of whether or not the County has improperly waived its zoning power in regazd 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, appazently with the approval of the Mayor and the Planning
Director.
EXHIBIT 2
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 I~hway, 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 VV
THOMAS L.H. YEH
R. BEN TSUI{AZAKI
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
Tl~szald Yeh 8t Moore aea+rnK~rwn
AUiMtl IJ~6N4'~~Y 1nOMtiS LN.YF~[
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August 14, 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; Special Permit Itegirirement
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 H1tS Section 302A-1184, as exempting charter schools from
applicable State lead 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 daw, 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 preempflon of county land use laws
and regulations.
1
Enclosure (1)
'1>atlaztld Yeh do Mooee
Ytarwe
AlLW1[L6mgia~eo~p~q
We therefore believe that the County's interpretttion is contrary to the plain
language and intent of Section 302A-1184 and that the failure to require the Wabas of
Life school to undergo the setutiny 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 ciurent 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 information 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 properly.
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 fourteen 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 fortwo-way traffic, •especially involving school buses, but there are sight
distance and curvature problems. Ala Loop is aCounty-maintained road.
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
already severe trMffic hazards for those entering or exiting either end of Ala Loop during
morning and afternoon commuter hours.
That the substandard condition of Ala Loop is inadequate to accommodate two-
way traffic has ah~eady been officially recognized by the County. In 1995, the County
Planning Commission denied a special pemrit application for a proposed churoh 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. ,
i
The WOL site is classified as Agriculture by the Land Use Co~*+n++~~ion of the
State of Hawaii and as A-20a under the Zoning Code of the County of Hawaii.
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Applicable Law
HRS Section 302A-1184 provides in pertinart 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 proarremeat of goods, services, and construction, consistent with the
goals of public accountability and public procauemart practices. However, 1
where possible, the new oeatucy cbarter 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 procuremart 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" j
The pertinart provisions of Section 302A-1184 were adopted in 1999 whar the iJl
Legishrdu+e adopted the concept of new century charter schools. A rtiwiew of the
legislative history for Section 302A-1184 reveals that when the exemption language of
tire statute was being reviewed, the I.egislatur+e did not infarct that the exemption statute
should be used to circumvart applicable zoning Isws. Thus, is Act 62, 1999 S1,H, 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 i
and autonomy of such schools from the department of education. (See Section 1 of Act
62, Appendix A). i
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Similarly, in Standing Committee Report No.1404, the House Committees on
Education and Labor and Public l?mploymeat also expressed the intent that such schools
should be &+oe of bureaucratic red tape, and be able to accommodate the Individual needs
of students and be exempt from state procurement laws. (See HSCR 1404, 1999 SLH;
Appendix B)
Section 302A-1184 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 We contrary, a specific excxption to the exemption from "applicable state laws" are
those state laws regarding "health and safety requirements".
A Special Permlt is Regalred for the Proposed Charter School Because
Special Permit Requirements Specifically Involve A Rev[ew of Health and Safety ~
Issaes Betore Aa Otherwise Impermissible Use Can Be Established on Land Within
• the State Agricultural DIsMct
The list ofpermissible uses within the agricultural districts, as set forth in HRS
Section 205-2 or 205-45, does not include schools. Beyond the list of pemrissible 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 (LLJC) 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 permissible agricultural use may petition the county
planning commission for a special permit to use the land is 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 I
`Surusual and reasonable use" connotes health and safety coacems that need to be l
addressed before the issuance of the special permit. The LUC rules require that certain i
guidelines be considered in determining whether a use is unusual and reasonable,
4
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including whether the use would (1) adversely affect surrounding property, or (2)
utunasonably burden public agencies to provide roads and slroets, sewers, water drainage
and school improvements, and police and fire protection. LUC Rules 15-15-95(b). S~
Nei~rborhood Boa*d v State L~!++d Use Cnmmi~cion 64 Haw. 265, 270 (1982). These
guidelines durctly rotate to health and safety issues for both surrounding rosideats and
the public health and safety: sewers, roads, water and fit+c and police protection.
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 i
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 took 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 j
special pemut for the operation of such a school on lands within the agricultural district,
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 sa 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 pemut 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. tl.um Yjp Kee. Ltd. v. City and County , 70 Haw.179 (1989));
sa also 83 Am Jur 2d, Zoning and Planning, 4,13-15. The power to zone constitutes
the exercise 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, H12S 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 H1LS 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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may regulate the areas where trade or business may be conducted, particular uses maybe j
subject to special restrictions, the location of roads, schools, and other regulations i
necessary and proper to pemmit omderly development consistent with the deference given l)
to theconstitutionally-rooted police power, HRS Section46-4 provides that the zoning
power granted therein "shall be liberally conshtmed in favor of the county exercising
them.. " i
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. Soction 25-4-3, provides that for each
zoning district, the pemutted uses listed in the regulations for such district may be
established within that district after compliance with spoc~c restrictions of the district
Any use not listed among the pemritted uses is a prohibted use within that district.
Section 25-4, 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 pemmitted use in the agricultural district, and are thus,
prohibited under Section 25-413. WOL must establish its school in an appropriate zoning
district unless it obtains either of the discretionary pemmits described below. It should be
noted that Section 25-5-72 provides that a school may be 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 pemmits, 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 WC's rules.
They require a determination of the potential adverse affects upon surrounding property i
owners and the issue of whether the proposed use will um+easonably burden agencies to i
provide sewers, roads and sheets, drainage and police and fim'e protection. Rule 63 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 bcen 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 pemmit is obtained from the i
Planning Commission.
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~u.weuroq~t..a.pq
Section 25-2-61(c) provides that a use permit shall not be t+egt»rad 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 chatter 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
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 properly, streets, traffic, end community
characteristics and may deny or condition plan approval if the proposed development will
create unreasonable health and safety risks.
In regard to the plea approval requirement, we note that on October 30, 2001, the
County of Hawaii sent to the DOE a summazy of the nrles and regulations that charter
schools are r+egnired to follow and erroneously 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 circwnstances.
Conclusion
i
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
compliance with the zoning laws of the County of Hawaii. A charter school is not a
permissible use in the agricultural dLctrict in the absence of a special permit. The special
~erntit, in this instance, must be approved by the Planning Commission and the LUC. In
the absence of a special permit, a use permit is t+equited 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 hazards inherent in substandazd conditions of Ala Loop road, as
already recognized by the County of Hawaii.
T
i
ltakazvd Yeh dt Moore
a~vuenArue
AIiYellibBq{arOoepny - ~
Request for Review
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 actioa 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 I
position or if it will be necessary for the Ala Loop residents to scek relief from the
appropriate agency or court in enforcing the obligations of the County and WOL to
comply with the law.
iI
~y yours, I
TSUKAZAKI YEH & MOORE,
A Limited Liability Law Company
THOMAS L. H
R BEN TS
Attorneys for
Ala Loop Community sociation
RBT:nI
xc: Ala Loop Community Association
Christopher J. Yuen, Planning Director
James Y. Arakaki, Chairman, Hawaii County Council
Representative Eric Hamakawa
Senator Russell Kokubun i
Anthony J.H. Ching, Executive Officer, Land Use Commission
Diane Erickson, Esq.
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PLANNIIV(} COMMISSION
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CERTIFIED MAIL
2 416 228 819 .
July 27, 1995
Greg Lee, Trustee
Mountain View Congregaion of
Jehovah's Witnesses
260 lCahilani Street
HIIo, HI 9!720
Dear Mr. Lee:
Speciat Permit Application No. 95-3
Applicant: Mountain View Congregation of Jehovah's Witnesses
Request: Establishment of a Church Meeting Facility
T"x M8D-~~Y" 1 7-8:25 '
The Planning Commission at duly advertised public hearings on June 7, 1995 and July 13, 1995,
t:onsidered the above-referenced request for a Special Permit in acxordance with Chapter 205-6,
Hawaii Revised Statutes, and Rule 6 of the Planning Commission, to allow the establishment of a
clnuch meeting facility oa agpmximately 1.145 acres of land situated within the State Land Use
Agrlarlnual District appro:amately 1,250 feet west (Keaau) side of the Volcano Read
Ala Loop
I~etsection, Olaa Reservation Lots, Puna, Hawaii.
The Commission voted to deny Special Pemrit No. 905 based oa the following findings: ~
In considering a Special Permit for airy proposed use, Rule 6 of the Planning
Commission relating to Special Permits requites 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
streets. sewers, water, drainage, school mtprovements, and•police and fire
protcdion; '
d. Unusual conditions, trends and needs have arisen since the district boundaries
and regulations were established;
,,,MK r1,... .,I
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 distract;
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; I
In addition to the guidelines detailed above, the Planuing 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 t~apter 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 wtth any one of these criteria.
The proposed use will not promote the effectiveness and objectives of Chapter 205,
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 is the State of Aawaii and assisted in the
nnplementation of the long-range land use objectives of the State and Counties. The invent of
these statutory provisions is to preserve, protect and encourage the development of lands is
the State for those uses to which they are best suited in the interest of the public health and
welfare of the people is Hawaii. In the case of the Agricultural District, the intent is to
preserve or keep lands of high agricultural potential in agricultural use.
At the County devei, these broader statewide objectives are articulated through the
Coanty General Plan. In that respect, land use a~ its consistency with the goals, objectives
and pohcies of the General Plan wt71 also promote the effectiveness and objectives of
Chapter 205. Ei.R.S.
The granting of this particular request at this patticularlocation 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 communities meeting the needs of its residents in
balance wrth the pf~ysical and social environment."
The applicants propo a to establish a churoh meeting facility within as area serviced
by a winding, substandard Broadway. This portion of Olga 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 is traffic along this substandard roadway
generated by the proposed church use would adversely affect surrounding property owners
Y
.ireg Lee, Trustee .
Mouttain View Congregation of
Jehovah's Witnesses
Page 3
by attracting trrffic along a roadway in which the existing pavement width is not sufficient to
accommodate two-way trraffic. The Commission would be t+emissed in its duties were it to
approve such a use which would attract itaffic along sack inadequate, and possibly
hazardous. roadways. The narrow sad winding nature of Ala Loop Road and the frequent
nightly meetings to be held at the church only add to the concemc regarding the of
Ala Loop Road. The State Department of Transportation has indkated that access
taeoy
subject property directly from the Volcano B:ighway will not be permhted. This access
restriction u further enfotixd by a 10-foot wide planting acx+xtt 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 emiironment of this portion of Puna.
The desired use will unreasonably burden public agencies to provide roadway and
safety protxtioa improvements. As in previous licadons for similar types of uses,
~h~width w~htch
would t ~cva~had above ~
Paves Y
existing Perdition of Ala Loop Road cannot support tote ptr~ clw~ nse. To require the
applicant W widen A(a Loop Road over its 4, foot-phis would be Snancially
prolu'bitive 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 asolve, thereby burdening governmental agencies to address
such pp biems is a reactive, and notpro-active, manner: The Pumr Distrux has many miles
of substandard roadways which are uoa6le to accommodate the traffic levels upon
' them. It would not be in the best interest of the Coumy to support~risification of land
use it 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-residentiaVagricultural 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 Commissroa has been consistent is its efforts to ensure
that uses approved through the issuance of a Special Permit are provided with basic facilities
sad services to accommodate the approved use. Should this policy direction be abandoned
with the approval of this request, arnillar requests along Ala Loop Road or other aabstandard
roadways must be favorably coasiderrd,~irregardless of the txionrlative impacts a
' conxntratioa of such iraffio-generatiag opmems may have as eubstaadard roadways.
Such action could advritsely affect leads county-wide and frnat:ate the County's efforts to
manage such urban-types of growth to ensure adequate public fact7ities and services for all.
With the discussion above, approval of the rec~ucst would be in direct conIIict with a goal of
the Land Use Element of the General Plan to Designate and allocate land uses is appropriate
proportions and mix and in keeping with the social, cultural, and physical environments of
the County" while main a;n;no a policy to " encourage the development and
maintenance of wn+*n~~ntties meeting the needs of its residents in balance with the physical
and social environment."
Based on the above considerations, it is determined that the establishment of a church
meeting hall at this particular location would not premote the effectiveness and objectives of
the State Land Use p w. It is, therefore, decided that this Special Permit application be
denied.
I
M~otnua~ln Vi~ew~Congregation of
Jehovah's WItnesses
Page 4
As stated in Rule Cr9, 'The Planaiog Commission's decision is appealable to the Thud Circuit
M
Should you have any questions on this matter, please feel flee t0 contact Alice 1{awaha of the
Planning Department at 961-8288.
• I
Sincerely,
•
Wilton K. Wong, Chairman
Planning Commission
AK:syw
ta~tavoeoz.pc ,
ec: - 13onoratile Stephen K. Yamashiro, Mayor
Planning Ditectoc
State Land Use Commission
Department of Public Works
Department of Water Supply
Corporation Coutise(
• Play Apptrovai Section
Mr. Riclry ICamimura/Mr. Nathan Wong
T
lkukazaki Yeh & Moore R saHrsua,~,~
rnmRta;rser[ww
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7aepLoee fens) 9s~~ass e~x taoa~ savas3~ moaear..aa
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
Dear Mr. Ashida:
In response to your letter dated August 21, 2003, in which you stated you were
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.
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 copy of the Planning
Director's July 21, 20031etter 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 paragraph "3" on page one states:
"Charter schools are not ezempt from the County Zoning Code."
This comports with the legal argument tendered in my August 14, 2003 letter to you.
Enclosure (2)
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 wnceras you may have regarding this matter and
look forward to hearing from you.
I
Very truly yours,
TSUKAZAKI YEH & MOORS,
A Limited Liability Law Company ~
r ~
I
THOMAS L. H ~
R BEN TS
Attorneys for
Ala Loop Community Association
RBT:nI
Enclosures
xc: Ala Loop Community Association
James Y. Arakaki, Chairman, Hawaii County Council
Representative Eric Hamakawa
Senator Russell Kokubun
i
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.
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u~tewa, a<o.iu . ~•m~ vsrnrin .~sa~.au . r.~twr>s~srasss
racy: vsnoax.~:wse.y;awrm . x.smxe..,a~.es sa~,o
tragsmam . rzcws~srsssar
October 30, 2001
Chuck Ii'iggins
Public Charter School Specialist III
DOE/PAO ~
P. O. Box 2360
Honolulu, Hawaii 96804
Dear Mr. mss:
Attached is a compilation of county sad elate rules nrd regulations that charta~ schools are
required to follow. Please duplicate and distr~uto to charter schools located in rho County of
Hawaii.
If
you have any questions, please call me.
Sincerely,
~
Dixie ICaetsu
Managing Dirrctor
I
i
CHA1tTElt scaools AND rnxD usa xECUr.Aazoxs
The following pmvidcs a e:uumacy otetate and awty lend use regrdatiom with neq:xt to Charts
Sdaola puraumt to ~3o?A-t t84 tIILS, ¢zos-6 HILS and gawaii t~mq, (bode Quppa,zs (Z~g per).
t. liadrYroand: Chapter 302A ofliawaii lLeviaed Statutes sets i
foAh a aatuooay scheme for the establiahmept
sad operation of dmta tehools. The purpose of
the Aot it to increase the tY and
atthe school loud by allowhrg
existing public schools and new rchoola to be
desigaated as new drmter schools. fll
Z. Appltca6lllty of State I.awa: Chatter schools are exempt from state laws,
except those relating to hcaltlraad safety and a
few other exception ([a building, fm, and
. sea{mtion codes). The mq{or effect of Eris,
excmptIm is that t7uater schools located to
StateLasatUuAgricol6uaCDBMeh do not
4ave bo obtain a 6peetal Permit
3. County Zoning Code: Chafer schools an sot ezempt from the
(:amty Zoning Code.
4. Charter Schools Allowed In Theo - Plan Approval is m adminichaHve review of
Zone Districts with Pfau Approval: techtdcal details ]r7ro patidng, scam, and traffic
circulatiot:, sad & aamaily d~ QdddY by ~
Plamfng Departsneat wttirout say public nwiew.
• CN (neighborhood oommeroial)
•
• CQ (general coanner+eial)
• (~H (Downtown lido)
' • MCX (mixed indushiat-commu+eisl)
• RCX (residential~cotamacial)
S. Charter Schoch Allowed In There Use Permits am gamted by the Plaaairrg
Zoae Districts wide a IIu Permit: Commisston and tognhn anbtniasion of m
~ appli~ationandpubliol:caring.
. . , • RS (ainglo•famr7y residenial)
• RD (double-fatnr7y tcsidential) i
. • Itiv1(mnlti-family residcatisl)
• ItA (residential-agricultural)
Planomg Department, County of Hawaii October 7Z. 2001
i
F. t:4acter schools are xot Permuted 1n t7cseberachook are not allowed m the following
These Zone Dktrkk: dittcidc:
• 'V(visItor)
ML (limited indushial)
• Mf3 (general fadustrial)
• O (open)
7. State Land IIu Conservatlon Dktrids: ~ plying Dept alcaU defer to the
Depacfineat ofI.md and Natural Resom+xs
(DII1lZJ a to whether a cooseavatton dia4ict use
permit k necessary to operate a charter school in
a OoaservatIon Distri~K.
8. SpecW Management Area (SMA): (ararter:cbook lotxtcd la a de]neated SMA, ace
(applicable to delineated shoteliae subject to SMA roquicemeats in all mnkg
lontlons) districts. A clutter school in the ShfA will need
a Mgior SMA Pemrit it'flce impsvvements will
oast mae thm 5125.000. Mcdor SMA Permus
are grmtedbythe Pkmici~ C~sdon. lftbe
a.re hxs Bran st2s,two, 8re
charter school will n«d a i~ sMA Permit,
which k granted bythe Planning Director.
I
. l
I
Plaaa3aa Department, County of Hawaii October 22.2001
ruurtrato ot:PnRnttBer .
SUUMIARY OF PERWT REQUIREIAENi'S FOR OHpR7ER 8CHOOLS
T1ds Ia6M aiy leb pent~ih adtn4deterod by1M t` P{ate~np Doparbietd. Chatter echoola havo
eYrYlerpettak aqu4atuetas b other rdnds, azoept to tta AOriaiUaal DktAd.
Zatrku Olstrict Behools .
RS
• ~
RM
RA I
RCX 8
CN B
lXi B ~
8
COH B•
IACX B'
Ml. X
NO
V
Cqu BWR
Aor C
FAor C
A PatrNtted, ra permits
B Permitted. Plan approval ~
C Requ4ae uea pettdt or apedd permit
X Plotpem(8ed
B' SubJectb direcbfs Ytlerpratafbn
BINR Oderb deehbn by tta Board o(lattd tad MaWral Ratouroes
VYMn bested h 8a SMA, SMA nqutrontetds spply b charter sdaole even N the Stets lard lhw AQdcul4rral OlctrkY.
• Tla Piarwdnp Deparhnent can advise on the uareM zonfnp at arty eke and whether k is (n the SMA.
I
August, 200 i' .
• COUNTY OF HAWAII .
DEPARTMENT OF PUBLIC WORKS
BUII.DING DIVISION
~UIDELIIYES FOR CHARTER SCHOOLS
I. Buildine Permits .
QQmrired Permits
Pro~+,eed Constroction ~j(djpg Plumbing Elecxrical
Use ofexisdng school facility, no change Only for Only for Oniy for
in capacity new work new work new work
Conversion of an existing building into a Yes- Only for Only for
charter school new work new work
Completely new facilities or additions Yes Yes Yes
Concrete slab only for driveway or parking No No No
]L Snhmittsl Requirements for Permits
_ Three (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 oa ptiopetty, parking, driveways,
landscaping, retaining walls and setbacks from property line
- Separate plan sheets for electrica! work and mechanical work (air
wnditioning/heating, plumbing, septic or ewer system, range hoods, etc.). For
new facilities these plans are generally stamped by as electrical engineer and
mechanical engineer, respectively.
_ Grading plan if extensive (more than 100 abic yards) excavation or fill is involved
_ Whert required a separate plan for fue alarm and Sre sprinkler system with stamp
7 ADA (Americans w/Disabilities Act) compliance certification forui
' _ When required the special inspection fomr
~ _ When installing septic systems a Dept.ofHealth approval letter to construct the
~ individual wastewater system (IWS)
III Buildine Desi¢n Reauirements
_ 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
1
~ v o
Chrlaopher J. Yuen
oww.
Roy R Takemoto
n.~acw.
~
PLANNIIVG DEPART141ENT
101 Pauahi Street, Suite 3 • irdu,l[aavait %720.3043
(808) %1-8288 • Faz (808) %I.8742
July 21, 2003
Ala Loop Homeowners
P.O. Boxtl~
Hilo, HI 96720
Dear Representative of Ala Loop Homeowners:
SUBJECP: Ingalry ReertrdinY Charter School on Ala Loop
TMK: t-7-008:003 Olaa Reservation Lots. Perna. Hawali
We have received your letterdated July 11, 2003 regarding the Waters of Iafe Charter
School in escrow to purchase the old Sunshine Farm property oa Ala Loop..
The Planning Department has received numerous inquiries regarding dre operation of
charter schools within the State Land Use Agcieulttual District in regards to H.R.S.
§302A-1 t 84, which exempts charter schools from state laws, accept those relating to
health and safety, and a few other exceptions. Based on this law and a legal opinion
roceived from the Coaaty Corporation Counsel, wo are extanptiag chartrx eehools from
state land use laws not expressly related to health and safety.
The major effect of this exemption is drat cltarta' schools located in the State Land Use
Agricultural District do not have to obtain apeaal permits. Normally, a school in the
agricultural district would nerd a special pemrit with a process &at r+oquites notice to
nearby landowners and a pablic hearing.
Charter school fectlities may nerd other approvals and permits, including those related to
building, fire, end sanitation.
The law exempting the charter schools is open to interpretation sad the courts have the
final say. You, as homeowners concerned about the traffic irnpacts this operation may
have oa your community, have the right to take this matter to court to have a judge decide
if this charter school needs a special permit.
I
i
~ ~ ~ O
Ala loop Homeowners
Page 2
July 21, 2003
Jf you have aay questions, please feel froe to contact Jeff Darrow at 961-8288. '
Sincenel~~,~
CHRISTOPIIE+R J.
Planning Dinxtor
JWD:pak
oc: Mayor HarryICim
Ma Dixie Raetsu, Managing Director
Mr. Aady Levin, Bxeartive Assistant
Mr. James Atakald, County Councilman
Mr. Lincoln Aslada, Corporation Counsel
Planning (,`Ommiecipq $eCt10II
~ ~ .
' (.krooln S.T. Ashida
~Y fQm _ . ~ Corporation Counsel
M1ra GeraldTakase
t Assistant Ctxpcxation
RAN M•~ Counsel
COUN'T`Y OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 lwpuni Street Sake 325 FQIO. Fiawak 967201262 • (808] 9612251 • Faz (808) 961-8622
PRIVILEGED AND CONFIDENTIAL COMMUNICATION
ATTORNEY-CLIENT COMMUNICATION
NOT A PUBLIC RECORD
October 9, 2003
Honorable James Y. Arakaki
Chair, Hawaii County Council
25 Aupuni St.
Hilo, HI 96720
Dear Chairman Arakaki and Council Members:
RE: Charter Schools
At the Planning Committee meeting on October 7, 2003, the Corporation Counsel
was asked to provide a written opinion to the Hawai i County Council concerning
charter schools, and the applicability of State and County laws.
Specifically, the Council asked:
• Are new century charter schools required to obtain a special permit under
Section 205-6, Hawai i Revised Statutes, as amended?
• Are new century charter schools required to obtain a County use permit,
pursuant to Chapter 25 of our Hawaii County Code 1983 (1995 ed.)?
1. New Century Charter Schools are exempt from fhe requirement of
obtaining a special permit under §205-6, Hawai'! Revised Statutes, as
amended.
Chapter 302A, Hawai i Revised Statutes, as amended (hereinafter "HRS"), sets
forth a statutory scheme for the establishment and operation of charter schools.
Charter schools are established so that teachers, parents, and community
members can establish schools that operate independently of existing schools
and the departments of education. Note however, that charter schools continue
as "public schools "
T
~984y EXHIBIT3
~ I• '
The legislative purpose in the enactment of the aforementioned HRS Chapter
302A is set forth as follows:
The legislature finds that as long as a public school complies with the
requirements that it be free to all attending students, that its admissions
polices be nondiscriminatory, and that it comply with statewide
performance standards, a school should otherwise be free fmm statutory
and regulatory requirements that tend to inhibit or restrict a school's ability
to make decisions relating to the provision of educational services to the
students attending the school.
To nurture the idea of more autonomous and flexible decision-making at
the school level, the legislature supports the concept of new century
charter schools. The legislature finds that this concept defines a new
approach to education that is_free of bureaucratic red tape and
arxommodating of the individual needs of students to allow the State to
dramatically improve its educational standards for the twenty-first century.
Both existing public schools and new schools may be established as new
century charter schools, and these schools will allow educators to better
tailor the curriculum to enhance the teaming of the students.
The purpose of this Act is to increase the flexibility and autonomy at the
school level by allowing existing public schools and new schools to be
designated as new century charter schools. These new century charter
schools shall have a local school board as a governing body, and shall
operate independent educational programs from those provided by the
department of education statewide.
HRS Section 302A-1184 exempts new century charter schools from "all
applicable state laws" except those regarding collective bargaining,
discriminating practices under HRS Section 378-2, and health and safety
requirements. HRS Chapter 205 is not one of the state laws listed as still
applying to the new century charter schools. Thus, there is no express indication
from the legislature in the body of the statute that specifically provides HRS
Chapter 205 relates to health and safety, and should continue to apply to new
century charter schools.
A review of the entire HRS Chapter 302A does not reveal anything which further
expands or elaborates on this Section 302A-1184, or indicates that the section
does not mean land use laws. Since this statute is new, there is no case taw in
our state which interprets it. There is litigation in other states which have
established charter schools, but we have not found any cases on point with
respect to this novel land use issue. Thus, we are left to interpret the law under
the general rules of statutory construction which have been established in our
Hawai i case law.
2
The first printiple of statutory construction set forth in a number of Hawai i cases
is that the foremost obligation in interpreting a statute is to ascertain and give
effect to the intention of the legislature. This task is to be accomplished primarily
from a reading of the language contained in the statute itself. If the statutory
language is plain and unambiguous, the sole duty is to give effect, to its plain and
obvious meaning. In the Matter of the Application of Mark L Peterson v. Hawaii
Electric Lighf Company; Inc., 85 Hawaii 322, 944 P.2d 1265 (1997).
M exception to this rule would be that if the reading led to an absurd result. In
the situation where even if the statutory language is unambiguous, departure
from literal construction is justified when such construction would produce absurd
and unjust results and a literal construction in a particular situation is dearly
inconsistent with the purposes and polities of the act. Franks v. City and County
of Honolulu, 74 Hawai 1328, 843 P.2d 668 (1993).
In this case, the plain meaning of the language is that State laws do not apply to
the new century charter schools. The requirement that anon-pertnltted use in an
agricultural district obtain a spetial permit is a requirement under state law.
Therefore, the charter schools should be exempt from this law unless an absurd
result is obtained. We cannot conclude that it is absurd for this exemption to
apply.
Of course, the above conclusion presupposes that a special permit under HRS
Section 205-6 is not a requirement that involves the public "health and safety."
This is the issue confronting the Countil, and the subject of debate between the
proponents of the Waters of Life charter school, and Ala Loop homeowners.
Suffice it to say there are meritorious arguments on both sides of this debate.
The Ala Loop homeowners, through their attorneys, have suggested that the very
nature of the planning process involves consideration of factors and conditions
which directly impact the public health and safety, such as adequate roads,
environmental studies, fire safety, and the like.
Former District Court Judge Sandra Song, representing the Waters of Life
charter school pro Bono, maintains that planning requirements are exactly the
type of "red tape" the legislature intended charter schools to be free of.
We have also considered the attached letters from the planning departments of
the City and County of Honolulu and Maui, which clearly indicate they take the
position that both state spedal permits and compliance with their respective
county ordinances (presumptively other local permits) are required.
We cannot conclusively say a spedal permit under HRS Chapter 205 is a law
directly related to the public "health and safety.' In fact, the State Land Use
Commission, which dispenses spedal permits, is placed under the Department of
Business, Economic Development, and Tourism (see HRS Section 26-18).
3
The body of NRS Section 205-6, pertaining to specal permits, is barren of any
criteria or requirements pertaining to the public health and safety per se. Indeed,
the language of this section appears to ooncem itself with the'1~velfare' of the
community, criteria different from health and safety; and something commented-
upon by Deputy Planning Director Roy Takemoto at the Planning Committee
meeting on October 7, 2003.
Suffice it say our present opinion differs from the practice on Oahu and Maui.
However, as noted above, this particular issue has not been litigated in our state,
so there has been no conclusive judiaal determination that the practice on Oahu
and Maui is correct.
As mentioned at the Planning Committee meeting, a recent opinion from the
Office of Information Practices exempted charters schools from compliance with
the State Sunshine Law. This opinion was predicated on statutory construction,
as the OIP recognized that the plain reading of HRS Section 302A 1184,
exempted charter schools from "all state laws ; This opinion by the OIP further
supports our analysis that a plain reading of the law is the appropriate start in the
analysis of this issue.
11. New Century Charter Schools are required to obtain a County use
permit under Chapter 25 of the Nawai'i County Code 1983 (1995 ed.).
We have opined that charter schools may be exempted from the special permit
requirements of HRS Chapter 205. This conclusion was primarily predicated on
the plain reading of HRS Section 302A-1184, which expressly exempted charter
schools from State law requirements.
However, no such similar exemption exists in HRS Section 302A-1184, with
respect to County laws and ordinances (notwithstanding the fact the County law
or ordinance may not involve "health or safety' issues).
Chapter 25, Section 25-2-60, Hawai i County Code 1983 (1995 ed.) (hereinafter
referred to as the `Code"), provides as follows:
Use permits are permits for certain pennitted uses in zoning districts which
require special attention to insure that the uses will neither unduly burden
public agencies to provide public services nor cause substantial adverse
impacts upon the surrounding community.
Code Section 252-6-1 (9) requires schools in agricultural districts to obtain a use
permit before their operation is allowed.
Requiring a charter school to go through the County use permitting procedure
would involve a forum for the receipt of public input, something Councilman
4
1
Aaron Chung correctly recognized as lacking in the present Waters of Life
controversy.
Further, deliberation before the Planning Commission would allow proper
deliberation and discussion on issues, many of which the Ala Loop homeowner
contend are health and safety issues.
lll. Caveat: State preemption
The Council should be aware that there are state preemption concerns
surrounding this issue.
Under the doctrine of preemption, ff otherwise valid local legislation (here, our '
ordinance) conflicts with state law, it is preempted by such state law, thereby
rendering the County ordinance void.
A conflict exists ff local legislation duplicates, contradicts, or enters an area fully
occupied by general law, e'~ther expressly or by legislative implication. A local
law duplicates and is preempted by general law if the local law is coextensive
with general law. A local law contradicts general law and is preempted by
general law if it is inimical to general law. Finally, local law enters an area that is
`fully occupied° by general law when the legislature has expressly manifested an
intent to fully occupy the area or when it has impliedly done so. If the area is
`fully occupied," local legislation is preempted. Richardson v. City and County of
Honolulu, 76 Hawaii 46, 868 P.2d 1193 (1994).
In our present situation, County zoning laws and other Code requirements such
as those found in the Building Code do not duplicate nor contradict any provision
of the State statute. The question of whether the State law "fully occupies" the
area is not as clear. The only direct statement in the statute itself (HRS Section
302A-1184) is that State laws do not apply.
in 2001, one of our attorneys spoke informally with a deputy attorney general in
the education division, who indicated that the position of their department was
that HRS Section 302A-1184 not only exempted charter schools from State laws,
but County laws as well (with the exception of public health and safety laws).
Although the Attomey General has not issued a formal written opinion, their
position appeared to be based on state preemption analysis.
Perhaps the Attomey General felt at the time that impliedly County ordinances
were inapplicable, or perhaps that it was an absurd result to exempt charter
schools from the red tape of State laws but not County ordinances. The
statement of purpose found in the legislative history is very broad and may have
been the reason for his analysis.
5
Although intuitively we may feel that asking the present Attorney General for a
formal written opinion may be appropriate, a written opinion along the lines of
state preemption would be counterproductive to our efforts to maintain our "home
rule" position. Nonetheless, it is an issue which requires us to exerdse good
faith in obtaining as mudi information as possible, so we will separately proceed
to seek an opinion from the Attorney General.
As pointed out by various Coundl members at the Planning Committee meeting
on October 7, 2003, our County is the "front line" of government for our people,
and efforts should be made to retain its jurisdictional authority. Further, the state
preemption argument offered informally by a staff member of the Attorney
General two years ago may not be the considered policy of the present Attorney
General administration.
The bottom line is there is ample (and dear) legal authority for us to maintain our
present position that County use permits under Code Chapter 25 are required.
Summary
To summarize:
• A plain reading of HRS Section 302A-1184 exempts charter schools from the
state law requirement of obtaining a spedal penniL The spedal permit
requirement under HRS Chapter 205 is not a law that directly affects the
public `health and safety."
• Charter schools are not exempt from County laws (whether the laws pertain
to public health and safety or not). Thus, a use permit under Code Chapter
25 is required prior to the operation of a charter school.
As represented at the Planning Committee meeting, this is a very nebulous area
of the law, which offers little legislative history guidance, as well as no judidal
precedent. However, we believe our condusions are founded on basic prindples
of statutory construction, achieve logical condusions, and are devoid of absurd
results.
Please let me know if you have any additional questions or concerns.
Very truly yours,
LINCOLN S. T. ASHIDA
Corporation Counsel
Ends.
s: o~a~ ?Asc. ~P~P~^ re cnaner adioo~s and aa~kq t46o3~lsarc
6
:PARTMENT Of PLANNING ANO PERMITTIf
CITY pNU COUNTY OF HONJLULU
i50 SOVTN KING STREET • Nd10LULV. NAYlAN fit I]
TEIEPNONE IfOf 152]-4111 • fAK: IiOf 1521-QA • MTERNET: •mepJronokAU N va
JERENT HARRIS O ERIC G. CRISPIN. AIA
MAYM Q ! g11ECTOA
l • A BARBARA KIM STANTON
YENTY YIREQON
F„r. 2003/BLOG-2978 (JP)
Septattt~x 19, 2003
Ms. Shelley Hanaoka
P.O. Box 161
Hilo, Hawaii 96721
Dear Ms. Hanaoka:
- Charter Schools
This responds to your inquiry dated September 10, 2003 concerning procedures required to establish a chatter
school on agriculturally caned land on Oahu. Charter schools are regulated as "Schools: elementary,
intertrudiate, high" ("schools") for purposes of our Land Use Ordinance (I,UO).
The City and County of Honolulu, which encompasses the entire island of Oahu, has two agricultural zoning
districts: the AG-1 Restricted Agricultural District and AG-2 General Agricultural District Schools are not a
pettnitted use in the AG-1 District; therefore; a use variance would be required to allow a school on an AG-1
District zoning lot. Please note that use variances are typically very difficult to support. Schools are permitted
uses in the AG-2 District, with an approved condiflonal use permit (CUP). Use variances and CUPS are
processed by our department, with decision malting by the duector. There is a public hoaxing requirement for
all variances; fhe CUP tray require a public hearing, depending on anticipated impact.
If a school is proposed to be located on land which is also within the State j.actd Use Agriculture District, then
an approved Special Use Permit (SUP) is also required. Generally, the SUP must be issuedbeforo either a
variance (for a school in the AG-1 District) or CUP (for a school in the AG-2 District) can be considered;
although, concurrent processing may be possible. Any SUP application which involves more than 15 acres is
processbd by the State of Hawaii Land Use Commission; whereas an application involving 15 acres or less is
processed by this department, with decision malting by our Planning Commission. In tither case, a public
hearing will be held.
I hope this information is useful. Please contact Jamie Peirson of our staff at S27-S7S4 if you have any
questions.
Sincerely yours,
~/7lh
-ERIC G. CRISPIN, AIA
~irecror of Planning and Permitting
EGC:cs
f052E bc. M. S1x15)
-^V-'.. ~ M~
{ W r-0LE~ .
r
YYAYNE A BO1E0.f10
Daptq dnetu
COUNTY OF NIAU!
Ot=PARTMENT OF PLANNING
October 6, 2003
Ms. Shelly Hanaoka
P. O. Box 161
Hilo, Hawaii 96721
Dear Ms. Hanaoka: '
Re: PROPOSED SCHOOL WITHINTHECOVNTYAGRICULTlJRALDISTRICT
Thank you for your letter of September 10, 2003.
Schools are not permitted within the County's AgrlwNural dlsirict. County
Conditional Use and State Specal Use pernJts will be required If the school site H over
15 acres, the State Special Use permit would be processed by the State Land Use
Commission.
• If you have anyquestlons regarding this letter, you may call Trisha tCapua'ala, Staff
Planner, at (808) 270-7253.
Slnce/Jr~ely,
/'ri~~
MICHAEL W. OLEY
Planning Director
MWF:AHS:nsg
xC: Clayton 1.'Yoshtda, AICP, Planning Program Administrator
Francis Cerizo, Staff Planner
Trisha Kapua'als, Staff Planner
03/ZAED General FUe
K1'NP~OCSPLAfVN WGV.ITT'ERSVL2pp3l'i~9gt{~p,~,~d,l,wpp
Pu~NNING ONISION (8~j II70--Tj15; 20MNG gVISKklK (906
I
TO~MSS:'FACSIMLLE (808) 270.7634
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
COUNTY OF HAWAII, a municipal
Corporation of the State of Hawaii, CIVIL NO.
Plaintiff, SUMMONS
vs.
ALA LOOP HOMEOWNERS, an
unincorporated association,
and
WAI'OLA WATERS OF LIFE
CHARTER SCHOOL, a public
school organized under the laws of
the State of Hawai i, John Does
1-10, Jane Does 1-10, Doe
Partnerships 1-10, Doe
Corporations 1-10, and Doe
Entities 1-10,
Defendants.
SUMMONS
STATE OF HAWAII
TO: Defendant ALA LOOP HOMEOWNERS
c/o TSUKAZAKI YEH & MOORE
85 W. Lanikaula St.
Hilo, HI 96720
Defendant WAI'OLA WATERS OF LIFE Charter School
17-715 Ala Loop
Kurtistown, HI 96760
YOU ARE HEREBY SUMMONED and required to serve upon LINCOLN
S. T. ASHIDA, Corporation Counsel for Plaintiff County of Hawai i, whose
address is Hilo Lagoon Centre, Suite 325, 101 Aupuni Street, South Hilo, Hawai I
96720, an answer to the Complaint for Declaratory Relief which is herewith
served upon you, within twenty (20) days after service of the Summons upon
you, exclusive of the day of service. If you fail to do so, judgment by default will
be taken against you for the relief demanded in the Complaint.
This Summons shall not be personally delivered between 10:00 p.m. and
6:00 a.m. on premises not open to the public, unless a Judge of the District or
Circuit Court permits, in writing on the Summons, personal delivery during those
hours.
Failure to obey the Summons may result in an Entry of Default and Default
Judgment against the person summoned.
DATED: Hilo, Hawaii,
Clerk of the above-entitled Court
In accordance with the Americans with Disabilities Act, and other
applicable state and Federal laws, if you require a reasonable
accommodation for a disability, please contact the ADA Coordinator at
the Third Circuit Court Administration Office at PHONE NO. 961-7440,
FAX 961-7416, or TW 961-7525, at least ten (10) working days prior
to your hearing or appointment date.
8
' rf _ •i
LINDA LINGLE 7. ~ ~ IMARK J. BENNETT
GOVERNOR a ;f RTTORNEY GENER4L
M1y Aem V~ q T
r 1UU3 ~~I 23 PRiRICRI1FtD 111 BISSEN, JR.
STATE OF HAWAII kiAsdwu{rwironNEVCENERu
DEPARTMENT OF THE ATTORNEY GENERAL
425 QUEEN STREET CCi_
HONOLULO, Hnwnn 96813 -
(808) 586-1$00 ' t`,~~,'
DY_
October 22, 2003
Honorable Lincoln S.T. Ashida
Corporation Counsel, County of Hawaii
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720-4262
Re: New Century Charter Schools and Special Permit
Requirements
Dear Mr. Ashida:
In your letter dated October 14, 2003, you indicated
that your office provided an opinion to the Hawaii County Council
concerning the applicability of state and county zoning laws on
new century charter schools. In your October 9, 2003 opinion,
your office concluded that charter schools were exempt from the
special permit requirement set forth in Hawaii Revised Statutes
(H.R.S.) chapter 205 but subject to use permit requirements
established in the Hawaii County Code.
Although the Office of the Attorney General has not
issued a formal opinion concerning this specific matter, our
position is that aew century charter schools are required to
adhere to special permit requirements prescribed in H.R.S.
chapter 205.
When the 1999 Hawaii State Legislature amended H.R.S.
Chapter 302A to include new century charter schools, its intent
was to "nurture the idea of more autonomous and flexible
decision-making at the school level." Section 1 of Act 62 (the
1999 act that amended H.R.S. chapter 302A to include new century
charter schools) explicitly states that "a school should
otherwise be free from statutory and regulatory requirements that
tend to inhibit or restrict a school's ability to make decisions
relating to the provision of educational services to the students
attending the school."
eK D~.~/~
~~~~h
Honorable Lincoln S.T. Ashida
October 22, 2003
Page 2
Moreover,. H.R.S. §302A-1184 expressly establishes that
new century charter schools are exempt from all "applicable state
laws."
Based upon legislative intent and statutory language,
our interpretation of H.R.S. §302A-1184 is that new century
charter schools are exempted from state laws that relate to the
regulation of education. However new century charter schools are
subject to laws that apply to the general public and other state
agencies and entities (i.e. criminal statutes, zoning
regulations, etc.). It would be inconceivable to conclude that
H.R.S. §302A-1184 exempts new century charter schools from laws
that the general public and other state agencies are required to
adhere to.
Furthermore, the special permit requirement under
H.R.S. §205-6 could be considered a law "regarding health and
safety requirements." Your opinion concluded that the language
of this section of the statute concerns itself with the welfare
of the community and differs from health and safety requirements.
However, "welfare of the community" could reasonably be
considered to be a matter related to the health and safety of
those who reside in the community, and zoning and permitting laws
could be viewed more generally as relating to health and safety.
H.R.S. §205-6(a) permits the county planning commission
to "permit certain unusual and reasonable uses within
agricultural and rural districts other than those for which the
district is classified." According to Neighborhood Board No. 24
v. State Land Use Commission, 64 Haw. 265, 270, 639 P.2d 1097,
1101 (1982), whether a particular use is:
"'unusual and reasonable' is determined by applying
five guidelines set forth in the Land Use District Regulation
§5-2 to the proposed project. Section 5-2 requires the following:
(1) Such use shall not be contrary to the objectives
sought to be accomplished by the Land use Law and Regulations.
66526_2.DOC
Honorable Lincoln S.T. Ashida
October 22, 2003
Page 3
(2) That the desired use would not adversely affect
surrounding property.
(3) Such use would not unreasonably burden public
agencies to provide roads and streets, sewers, water, drainage
and school improvements, and police and fire protection.
(4) IInusual conditions, trends and needs have arisen
since the district boundaries and regulations were established.
(5) That the land upon which the proposed use is sought
is unsuited for the uses permitted within the District."
The fact that the planning commission must take into
consideration that the alternative use of the land would not
unreasonably burden the provision of sewers, water drainage and
police and fire protection, necessarily means this is a matter
relating to health and safety.
The county planning commission and land use commission
must consider the welfare of the community (as well as issues
relating to the health and safety of that community) prior to
issuing special permits for alternative uses of agricultural and
rural district land. Indeed, cases dealing with zoning
generally, often discuss the role of health and safety in zoning
decisions. See, e•g., Topliss v Planning Commission, 9 Haw.
App. 377, 394-395, 842 P.2d 648, 658. See also Nelson v. City of
Selma, 881 F.2d 836, 839 (9th Cir. 1989). We believe H.R.S.
§205-6 does appear to relate to health and safety requirements.
Our interpretation of the applicability of special
permit requirements is limited to state zoning and permit laws.
As indicated in H.R.S. chapter 28, our office is charged with
interpreting state law. As to the issue of whether new century
charter schools are required to adhere to county use permit
requirements, we would initially defer to the Office of the
Corporation Counsel, but note that in considering the phrase
66526_2.DOC
Honorable Lincoln S.T. Ashida
October 22, 2003
Page 4
"health and safety requirements" and its applicability to county
use permit requirements, you may, of course, consider the
rationale of this letter.
Sincerely,
~'?Joanna Fong
Deputy Attorney General
APPROVED:
.
Mark J. Bennett
Attorn y General
66526_2DOC
j"'.., Lincoln S.T. Ashida
`p'~ ~ Corporation Counsel
Harry Kim '
Mayor
Gerald Takase
Assistant Corporation
" 'o:'M~'+ Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 • (BOB) 961-8251 Fax (808) 961-8622
November 25, 2003
Thomas L. H. Yeh, Esq.
Tsukazaki Yeh & Moore
85 W. Lanikaula St.
Hilo, HI 96720-4199
Dear Mr. Yeh:
RE: County of Hawaii v. Ala Loop Homeowners, et. al.
CIV. NO. 03-1-0308
Our Entry No.: WRK 03-5847
Mayor Harry Kim received the attached letter dated November 10, 2003, from the
Ala Loop Community Association.
Since this matter is in litigation, I thought it prudent pursuant to Rule 4.2 of the
Hawaii Rules of Professional Conduct to address the County of Hawai'i's
response to you. We kindly ask you communicate same to your clients.
You brought similar concerns to our attention via your letter dated November 7,
2003. For ease of reference, I have enclosed a copy of my November 17, 2003,
reply to you, and ask you share it with your clients.
I wish to reiterate the County's position that as of this writing, the Waters of Life
Charter School has not formally applied for a temporary or occupancy permit for
the Ala Loop site.
The only "approval" given by the County has been the Planning Department's
consent that this is a permitted use on this particular site. I wish to remind you
this issue was discussed at the October 22, 2003, Hawaii County Council
meeting, wherein our administration made representations that it would most
likely allow the school to continue its operations pending approval by the Hawaii
Planning Commission. There is precedent in our County for the Planning
Director to allow the temporary use of property while an applicant seeks and
obtains the necessary permits, so this decision is not extraordinary in nature. -
Thomas L. H. Yeh, Esq.
November 25, 2003
Page 2
I thank you in advance for sharing this response with your clients. I invite you to
contact me directly if you have any questions, comments or concerns.
Very truly yours,
l/"
LINCOLN S. T. ASHIDA
Corporation Counsel
Encls.
cc: H orable Harry Kim, Mayor (w/ encls.)
lonorable James Y. Arakaki, Chair, Hawaii County Council (w/ encls.)
Honorable Christopher Yuen, Planning Director (w/ encls.)
Honorable Bruce McClure, Public Works Director (w/ encls.)
S: LitigatioNCOH v. Ala Loop Homeovmers/Corresp./Letter to T. Yeh 11-25-03/LSAmr
t
• \
November 10, 2003 RECEI JED
Mr. Harry Kim 2003 NOU 24 AID 9 45
Mayor, County of Hawaii
101 Aupuni Street
Hilo, Hawaii 96720 COFPGh f ~G: d i,~~Ur~SEI
COUN ~ C.if H~~'JAI~
Dear Mayor Kim, ~ -
Based on the most recent decision by the County of Hawaii's Public Works
Department and Planning Department to allow the Waters of Life Charter School to
operate with a building permit for "temporary" tent-like structures, the Ala Loop
Community Association is requesting that the County strongly reconsider this position.
At the October 22"d County Council meeting, Chris Yuen testified that he would
follow the advice of the Corporation Council. The advise of the Corporation Council is
that a use permit is required for the proposed school operation. Therefore, Mr. Yuen
stated that he would require the charter school to abide by the County Zoning Laws.
Furthermore, an opinion given by the State Attorney General's office dated
October 22od states that, "It would be inconceivable to conclude that H.RS. 302A-1184
exempts new century charter schools from laws that the general public and other state
agencies are required to adhere to." The letter also clarified that the special permit
requirement could also be considered a law "regarding health and safety" requirements.
Although these land use issues may appear to be separate and unrelated to the
procedures for obtaining a Certificate of Occupancy, they are not. According to the
County of Hawaii Charter School Rules and Regulations document permit review
process, in order for a school to obtain an occupancy permit and operate as a school on
the proposed site, there are seven agencies that the school must be reviewed by and meet
regulations for, including the Planning Department. The other agencies are the
Engineering Division, Heaith Department, Fue Department, Wastewater/Solid Waste
Department, Department of Water Supply, and the Building Division.
If the County is willing to allow the charter school to operate in "temporary"
structures, that only results in permission from the Building Division to proceed. The
charter school must meet the requirements of the other six agencies in order for an
occupancy permit to be issued.
On numerous occasions, county officials have stated that charter schools are not
exempt from county procedures for obtaining a certificate of occupancy. Mayor Kim,
you made this very clear to the Association representatives and County Department
heads at the September 24`s meeting in your office.
On July 21 Chris Yuen, Planning Director, points out in a letter to the Ala Loop
Community Association that those permits related directly to public health and safety,
such as building, fire and sanitation, are required under the law. Lincoln Ashida,
!it a3-1/zg
~a~'~rl
9~ ~i
Corporation Council, reminds us of Chris Yuen's position in a September 18'h letter to
Ben Tsukazaki.
A letter dated July 22nd from Lincoln Ashida to the Ala Loop Community
Association states, "Although our local planning ordinances may not be applicable to
charter schools in State agriculturally zoned districts, the requirements of other
departments (and ordinances) pertaining to the public health and safety aze applicable."
An a-mail correspondence sent from Bruce McClure, Public Works, to county
officials dated July 280', summarizes what is required for Waters of Life to obtain a
certificate of occupancy: It states, "other departments such as planning for pazking
requirements, fire, health, and water supply must also be met with to be sure that their
requirements for public health and safety are met "
We would also like to remind the county that in the interim, while everyone waits
for a Declatory Ruling to determine whether or not the charter school must comply with
the county zoning code, it is incorrect to assume that having the charter school not
operate on the Ala Loop site would mean that they would be removed from their current
school location. The County should be reminded that Sunshine Farms on Ala Loop has
not been operating as a school up un61 this point because they have not acquired a
Certificate of Occupancy.
In a letter firom Bruce McClure dated October 60i, he says, "We are aware that the
school is conducting field trips to the site and we have conferred with Ms. Laurie
Saarinen, a member of the Charter Schools Board of Directors, that they are not
conducting school in the existing main structure." In this same letter, Bruce McClure
communicates that he has "notified both the school and their architect that they will need
to obtain building permits for their shade. These buildings cannot be used continuously
as school rooms even after they are permitted."
Although we sympathize with the charter school and the position that they are in,
it would be tremendously irresponsible for the County of Hawaii to adopt a position that
would ignore the county laws regazding obtaining an occupancy permit. All of the
children, school personnel, residents, and the public, will be subjected to health and
safety issues that have not been fully determined and resolved since the county rezoning ~
procedures and now the occupancy pemut procedures have not been adhered to. We feel i
that it would be wiser for the county to assist Waters of Life in their.quest to obtain a
temporary facility while we await a court ruling.
s t r ;r, -vf-~v r~~-- G%-~-~, ~ ~ ~ o~ v~zs ~ d~.r~ j ~,-s~.~-~ ~-'-ns~''r~
~Syrc,,.-~ ~ Sincerely,
T The Ala Loop Community Association
~ ~ ~ ~ ~
~ e, , ~
C~ „ ~
Corporation Council, reminds us of Chris Yuen's position in a September 18`~ letter to
Ben Tsukazaki.
A letter dated July 22"d from Lincoln Ashida to the Ala Loop Community
Association states, "Although our local planning ordinances may not be applicable to
charter schools in State agriculturally zoned districts, the requirements of other
departments (and ordinances) pertaining to the public health and safety are applicable."
An a-mail correspondence sent from Bruce McClure, Public Works, to county
officials dated July 28`s, summarizes what is required for Waters of Life to obtain a
certificate of occupancy. It states, "other departments such as planning for parking
requirements, fire, health, and water supply must also be met with to be sure that their
requirements for public health and safety are met."
We would also like to remind the county that in the interim, while everyone waits
for a Declatory Ruling to deternvne whether or not the charter school must comply with
the county zoning code, it is incorrect to assume that having the charter school not
operate on the Ala Loop site would mean that they would be removed from their wrrent
school location. The County should be reminded that Sunshine Farms on Ala Loop has
not been operating as a school up until this point because they have not acquired a
Certificate of Occupancy.
In a letter from Bruce McClure dated October 6's, he says, "We are aware that the
school is conducting field trips to the site and we have conferred with Ms. Laurie
Saarinen, a member of the Charter Schools Board of Directors, that they are not
conducting school in the existing main structure." In this same letter, Bruce McClure
communicates that he has "notified both the school and their architect that they will need
to obtain building permits for their shade. These buildings cannot be used continuously
as school rooms even after they are permitted."
Although we sympathize with the charter school and the position that they are in,
it would be tremendously irresponsible for the County of Hawaii to adopt a position that
would ignore the county laws regarding obtainiag an occupancy permit. All of the
children, school personnel, residents, and the public, will be subjected to health and
safety issues that have not been fully determined and resolved since the county rezoning
procedures and now the occupancy permit procedures have not been adhered to. We feel
that it would be wiser for the county to assist Waters ofLife in their quest to obtain a
1 temporary facili/+ty while we^a'wait a court ruling.
1. S ~fla~-t~Y~-~ tYar?~ \-7t. a, oL~p ~S ~ pro~aN~{-ta aU
Sincerely, i ~
n -,r The Ala Loop Community Association,
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~,.<'."`.w,, Lincoln S.T. Ashida
-'k Corporation Counsel
Harty Kim
Mayor Gerald Takase
' Assistant Corporation
~%'e:":" Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 967204262 • (808) 961.8251 Fax (808) 961.8622
November 17, 2003
Thomas L. H. Yeh, Esq.
Tsukazaki Yeh & Moore
85 W. Lanikaula St.
Hilo, HI 96720-4199
Dear Mr. Yeh:
RE: Your Letter Dated November 7, 2003 Concerning the Waters
of Life Charter School
Our Entry No.: WRK 03-5847
This letter responds to representations made in your letter of November 7, 2003,
addressed to Mayor Harry Kim and Hawai i County Council Chairman James
Arakaki, concerning the Waters of Life Charter School in the Ala Loop
Subdivision.
As of this date, Waters of Life is yet to obtain from the County a building permit or
occupancy permit for a "temporary structure" as you describe in your letter.
However, even if such a permit is eventually issued, your letter fails to address
certain relevant facts and circumstances previously discussed at the Hawaii
County Council meeting where this matter was discussed.
As you know, the County has initiated a lawsuit with the Third Circuit Court,
seeking a judicial determination of the applicability of State and County zoning
laws on new century charter schools. Whether zoning laws are applicable to
charter schools or not, there has been no disagreement by any party that laws
specifically pertaining to health and safety, such as sanitation and fire rules and
regulations, must be followed. Thus, your November 7th letter erroneously
concludes that the granting of an occupancy permit would ignore the
aforementioned rules and regulations pertaining to public health and safety.
They will not.
Your clients will not be denied the "due process" you mention, since their
concerns may be addressed before the County Planning Commission, if the
Circuit Court is to determine that a special or use permit is required.
Your further concern that your clients will be subject to "unregulated and unlawful
activity' is misplaced, since the school will still be required to comply with rules
and regulations pertaining to public health and safety.
~0~
Thomas L. H. Yeh, ~ _a.
November 17, 2003
Page 2
Further, at the Council meeting where this matter was discussed, many of the
Council members felt there could be a 'tivin-win" compromise to this dispute.
One of the thoughts raised by Councilman Aaron Chung was whether the school
could continue at its own volition and peril, knowing that an anticipated court
order could require them to go through the permitting process, where there would
be no guarantees with respect to their legal continued existence at the Ala Loop
site.
When asked directly by some Council members as to the anticipated course of
our administration, we candidly responded that based on previous
representations made, it may be argued that lay persons such as the Waters of
Life representatives may not have possessed the legal acumen to differentiate
between State and County zoning permits, and may have erroneously believed
that they were completely exempt from the permitting process. Note that
Planning Director Chris Yuen's letter of May 14, 2001, to the Kanu O Ka Aina
New Century PSC, mentions only that charter schools located in State Land Use
Agricultural districts are exempt from obtaining special permits; there is no
mention of charter schools in those districts being exempt from County use
permitting requirements.
You have repeatedly expressed to me your belief that the County "allowing"
Waters of Life to continue their operation during the interim time until the Circuit
Court determines whether they are required to obtain zoning permits, would "tip
the scales" in their favor, as they continue to accrue vested rights in the
continued development of their school. I have consistently advised you of our
belief the record is clear and unambiguous that any continued activity on the part
of Waters of L'rfe is at their own peril. I further trust they have received
competent legal advice to this end as well.
Very truly yours,
LINCOLN S. T. ASHIDA
Corporation Counsel
cc: Honorable Harry Kim, Mayor
Honorable James Y. Arakaki, Chair, Hawaii County Council
Honorable Christopher Yuen, Planning Director
Bobby Jean Leithead-Todd, Deputy Corporation Counsel
Sandra Song, Esq.
Y
S: LJdpaUOrJCOH v. Ala Loop/CorrespJLetler b T. Yeh 11-17-03ILSAmr