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Home My WebLink AboutCOM 0348.013 2002-2004 O,„yy OF New Lincoln S.T. Ashida y Harr Kim ~i~c: Corporation Counsel Mayor i• . Gerald Takase ..f. ` Assistant Corporation 'i 'd:'M~"' 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 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.' Comm. No. J Raf. To:P~°~ 2Q(~ f •,~~4 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, LINCOLN S. T. ASHIDA Corporation Counsel Encls. cc: H norable Harry Kim, Mayor (w/ encls.) norable 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: Litigation/COH v. Ala Loop Homeowners/Corresp./Letter to T. Yeh 11-25-03/LSAmr Y November 10, 2003 FiECFI ?ED Mr. Harry Kim 2003 NOU 24 Af0 9 `IS Mayor, County of Hawaii 101 Aupuni Street Hilo, Hawaii 96720 COHrGh .;:~=~:a CtJUtJ9Fl COUN~'~ CAF H~V?Nf 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 22nd County Council meeting, Chris Yuen testified that he would follow the advice ofthe 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 22°d 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, Health Department, Fire 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 24a' 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, fit a3-~/zg '~'~rl Corporation Council, reminds us of Chris Yuen's position in a September 18`h 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 28a', summarizes what is required for Watets 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 aze 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 schoo(up until this point because they have not acquired a Certificate of Occupancy. In a letter from Bruce McClure dated October 60', 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 Boazd of D"erectors, that they aze not conducting school in the existing main structure." In this same letter, Bruce McClure communicates that he has "notified both the school and their azchitect 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 childree~, school personnel, residents, and the publiq will be subjected to health and safety issues that have not been fully determined and resolved since the county rezoning i procedures and now the occupancy permit 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 j temporary facility while we await a court ruling. ~gpe~~~ S iq She...-~ ~ ~ ~ ols-gyp Sin~elyc~sr'~5 ~ r I 1 T` The Ala Loop Community Association - ~ ~ L'{e'' _2 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 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 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 aze 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 aRer they aze 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 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 permit procedures have not been adhered to. We feel that it would be wiser for the county to assist Waters of Life in their quest to obtain a temporary facility while we^awwait a court ruling. .5 i~Tla.~ir-~~ f; Y8r?~ a~ ~S tc~c.~ ~ p-YO~~ m-c~r~ Sincerely, i The Ala Loop Community Association ` `X1 Gv1 ~ ~ I ~ / ~:~f`~'~/ //li.4L:/~l ~~LL~.UI~~~Lf-ICG~Zc /////'/~i /1 / ,.ar?~.~V,. Lincoln S.T. Ashida Harry Kim Corporation Counsel Mayor Gerald Takase ' Assistant Corporation o.•d'+'~ Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Sude 325 Hilo, Hawaii 967204262 (808) 961-6251 Fax (806) 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 fora "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 7`h 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. ~O~LX'0I 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 "win-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 Life 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: LltigatioNCOH v. Ala loop/CorrespJLetter to T. Yeh 11-17-03ASAmr