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HomeMy WebLinkAboutCOM 0370.004 2002-2004 x1V os F ,......,,,y r_r 1 Harry Kim v 1 ~J Christopher J. Yuen Muyar 3 DEC 8 PIS 4 34 a,.~,r~r • or x~ CGUTi~. i . Roy R. Takemoto C0~1N I 1 . li- r Ip1P~~1f1 DepuryDimcmr ~~un#g of ~tt£u~xti PLANNING DEPARTMENT 101 Pauahi Street, Suite 3 Hilo, Hawaii 96720-3043 (808) 961-8288 Fax (808) 961-8742 December 4, 2003 Honorable James Arakaki, Chair and Members of the County Council Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Chair Arakaki and Members of the County Council: SUBJECT: CONDITIONAL ZONING At the November 19, 2003 meeting of the council, I mentioned that I had written a memo about the rezonings that restricted uses that normally would be allowed in the zoning district. I have enclosed a copy of that memo, which was sent earlier to the then-chair of the Planning Committee. It expresses my thoughts on this issue. Sincere) , ~ , ,-~'G,-27 ~'tG'Z--~ CHRISTOPHER J. YI~J'EN Planning Director CJY:pak Wpwin60/Chris/Memo to council -conditional zoning Enclosure cc: Ms. Connie Kiriu, Legislative Auditor Lincoln Ashida, Esq. Office of the Corporation Counsel Comm. No. 1~• Ref. Toc,_~„~~ Ref. Date MSY OF q1 Harry Kim Christopher 7. Yuen Mayor Direclur M~R'oi'il~'M' Roy R. Takemoto Deputy Dire[mr ~IILtTT~~1 I>r~ ~M~112ITT PLANNING DEPARTMENT 101 Pauahi Sweet, Suite 3 Hilo, Hawaii 96720-3043 (808)961-8288 Fax(808)961-8742 MEMORANDUM NO. 03-17 May 20, 2003 TO: STAFF ~ ~ FROM: CHRISTOPHER J. YUEN ~ ~ _ PLANNING DIRECTOR l~'-- SUBJECT: CONDITIONAL ZONING The purpose of this memo is to look at the question of when it is proper to have a rezoning condition that limits the uses that ordinarily come with the new zoning. There have been a number of examples: recently, we recommended a CV zone in Volcano that permitted commercial uses, but not some of the potentially noisier commercial uses, because it adjoined a residential area, and prohibited higher-density residential uses, because of the lack of a potable water system. There have also been many rezonings to smaller lot sizes, in the past decade, that limited future development to one house per lot, in effect not allowing the potential for an `ohana or additional farm dwelling. From the standpoint of overall land use policy, the ability to place conditions like these can be extremely useful. The Zoning Code is aone-size-fits-all prescription. Very often there are site-specific concerns that would make the rezoning unacceptable if all possible uses were allowed. And when we must consider all of the possible uses, and impose conditions suitable for the most intensive of those uses, we can put a burden on an applicant who might have a very limited and specific project in mind. For these reasons, zoning with site-specific conditions, including conditions that prohibit uses that might normally accompany the change of zone, is now a very common practice throughout most of the United States. See 1 Rathkopf, The Law of Zoning and Planning, sec. 44:1, Anderson, American Law of Zoning, sec. 9.20 (4`h ed. 1996). There have been legal questions raised about this practice in the past. Sometimes this is labeled "contract zoning", and there are examples of courts in the United States striking down conditions in a specific rezoning that varied from what is allowed in the zoning STAFF Page 2 May 20, 2003 ordinance. The strong trend in the United States, however, has been for courts to uphold these kinds ofsite-specific conditions, as long as they are rationally related to concerns about the site in question. See generally Rathkopf, sec. 44.4; Anderson, sec. 9.21. The more modern cases tend to uphold this kind of zoning unless there is something in the state enabling law that forbids it, such as a clause that the regulations in each zoning district must be "uniform" (example: California.) Although there is no Hawaii case that directly deals with this issue, conditions of this sort have been routinely imposed, apparently without legal challenge, for decades. In Hawaii, the zoning power is granted to the counties by H.R.S. sec. 46-4. It does not contain anything that limits the power of the counties to impose site-specific conditions on a rezoning. It specifically provides that "the powers granted herein shall be liberally construed in favor of the county exercising them..." The 1996 Zoning Code authorizes conditions on change of zone through sec. 25-2-44: (a) Within any ordinance for a change of zone, the council may impose conditions on the applicant's use of the property subject to the change of zone provided that the council finds that the conditions are: (1) Necessary to prevent circumstances which maybe adverse to public health, safety and welfare; or (2) Reasonably conceived to fulfill needs directly emanating from the land use proposed with respect to: (A) Protection of the public from the potentially deleterious effects of the proposed use, or (B) Fulfillment of the need for public service demands created by the proposed use. The Zoning Code, therefor, specifically allows special conditions "on the applicant's use of the property." Although it is not clear that the council must explicitly make the "findings" in the ordinance, it is definitely the better practice for the rezoning ordinance to contain the specific findings recited in sec. 25-2-44 whenever the rezoning ordinance contains conditions that limit some use of the property that ordinarily accompanies the rezoning, or imposes requirements that do not automatically follow from other laws. For example, these findings should be made to impose conditions that the applicant put in a traffic STAFF Page 3 May 20, 2003 light, or donate land for a park, or widen a road. The findings should be accompanied by a reason for the conditions: for example, "to limit the potential impact of increased density on the road system." We should have some clear reason for imposing special conditions that limit the uses that can be made of a property after rezoning. The basic premise behind zoning is that land is ~~o zonirZg distric fin the districrt are ~ampatilsl~- Especially in commercial and light industrial areas, businesses demand some flexibility in the future uses of a site. It should not become the norm that a rezoning is specific to a certain project. The public expects us to look carefully at specific zoning proposals and to have conditions suitable for the site. There are many unique questions that come with various sites. At the same time, we need to stress that although a developer may come in with a specific proposal, the rezoning, unless limited, will ordinarily allow a much broader range of uses. There will be situations where a highly specific rezoning is desirable both for the applicant and the community, and we should recognize that this is one of the tools that we have in the Planning Department to make zoning fit overall community goals. In such cases, we may have a rezoning ordinance that is very much tailored to allow only a specific project. Rezoning conditions that limit the uses that can ordinarily be made of a property creates an administrative problem within the Planning Department in reviewing various kinds of subsequent applications, such as building permits or plan approvals. Staff cannot simply assume that all the uses allowed in the zoning code are allowed on the property in question. This means that staff must read the rezoning ordinance, at least when the property is designated as "conditional zoning" in the zoning maps or GIS. This is not the ideal situation but there is no way around it; most rezonings in the past twenty years contain significant conditions that must be met before the zoning becomes fully effective, such as infrastructure requirements or incremental zoning conditions, even if they do not actually restrict the uses. The county has also made it a practice that the ordinance requires that certain restrictions, like the limitation on additional dwellings, be placed as covenants in deeds. This is useful to provide notice to a purchaser that the possibility of additional dwellings, that might normally go with the rezoning, does not exist under the ordinance. I would not STAFF Page 4 May 20, 2003 expect the buyer of a residential homesite to review the ordinance that rezoned the property. We should probably also put the same clause in other ordinances that restrict specific uses, such as on commercial or industrial property, although in those cases I would expect a purchaser to review the rezoning ordinance as a matter of "due diligence", at least for undeveloped property. In these cases, though, the intent is not that the covenant be a permanent private covenant, merely something that gives notice to subsequent purchasers of the terms of the rezoning ordinance. For that reason, the rezoning ordinance can subsequently be amended by the council, to remove the restrictions, and in that case, the "covenant" does not restrict the property anymore, unless the landowners have chosen to also make it a private covenant enforceable by the lot owners. By the way, "contract zoning" is a label, like "spot zoning", that is used by different people in different ways. These labels sometimes suggest too much. Some situations that the term "contract zoning" is sometimes used to cover are clearly illegal It is illegal for the government to actually make a contract promising to rezone property if the private landowner does certain things. This is illegal because the government's power to zone is part of its "police power", which cannot be bargained away by contract. It is also illegal for the government to rezone property based upon the landowner's agreement to do things that are in no way rationally related to the impacts of the rezoning. One example is a developer promising to make substantial cash payment to the government for the privilege to rezone, when the payment is not based upon impacts from the project in question. But the modem trend has been to call imposing site-specific conditions of the type discussed earlier in this memo "conditional zoning", and legally permitted, rather than "contract zoning." CJY:pak Wpwin60/Chris/Conditional Zoning.doc cc: Honorable Bobby-Jean Leithead-Todd