HomeMy WebLinkAboutCOM 0045.042 2002-2004 E @ECI~IY'G'~
'lrnl.. W` BY---
MICHAEL J. MATSUKAWA t~afe
~nry~nd~
Attorney at Law
75-5751 Kuakini Highway
Kailua-Kona, Hawaii 96740
Telephone 329-1385
June 15, 2004
Hon. James Arakaki, Chairman
and Members of the County Council
County of Hawaii
20 Aupuni Street
Hilo, Hawaii 96720
Re: Bill No. 163, Draft 2 (General Plan Revision)
Follow-up Comments on Kona Workshop Testimony
Dear Mr. Arakaki and
Members of the Council:
The minimum contents of a comprehensive long-range plan are outlined in
Section 226-58, HRS. The plan does not have to contain a complex analysis of a
wide range of subjects. All that Section 226-58, the plan contain, as a minimum,
the following components - "Implementation priorities and actions to carry out
policies, including, but not limited to, land use maps, programs, projects, regulatory
measures, standards and principles and interagency coordination provisions."
Draft 2 has LUPAG "maps" and, as Councilman Tulang observed, could
include federal-state-county "interagency coordination provisions."' Draft 2 also
contains objectives and principles that arguably qualify as "standards and
principles." What is missing from Draft 2, however, are the other items described
in Section 226-58, HRS ( rp
oiects, regulatory measures and implementation
priorities and actions) and language that gives the plan the force of law.
The plan must be comprehensive in the sense of establishing a clear and
enforceable framework upon which future actions are based. A good example of
a comprehensive, yet succinct plan is Chapter 205A, HRS (the Coastal Zone
Management Act) and Chapter 343, HRS (the Hawaii Environmental Act). These
statutes are only a few pages long, but contain all of the elements of Section
226-58, HRS.
~ Many other subjects involve interagency coordination such as when a project involves multi-
agencypermitting and multi-agency review of environmental documents and multi-agency standards for
decision-making. Existing law in Chapters 46 and 201, HRS call for coordination, but there is no
implementing requirement for coordination, which benefits all parties and agencies. Comm. I~io.~~
Ref. To:
Ref. Uoto „JJ N~ ~d
Hon. James Arakaki
June 15, 2004
Page Two
Many people lack confidence that the county will adopt the critical
development plan ordinances (based on experience). For that reason, many
advocate "front-loading" the plan out of practical necessity. Understandably,
Draft 2 avoids such "front-loading" in order to make the plan a more streamlined
document. However, the plan should contain some minimum "guarantees," as
required under Section 226-58, HRS, that the county will adopt these
development plan ordinances within specific time deadlines.
Finaiiy, the Council should abandon the notion that the plan can be "non-
regulatory." The Hawaii Supreme Court has already cautioned government
officials that if a plan is hortatory with no force of law, such a plan cannot be
enforced. The result is obvious. No one can rely on the plan or any of its parts,
including its LUPAG maps.
Thus, a landowner whose land is designated "Resort" on the LUPAG
maps or may be entitled to claim a "floating commercial zone" cannot expect a
court to protect that designation. Similarly, citizens who oppose a specific land
use proposal may find county officials are unable to deny such if the plan is a
decision-making criterion. The result is confusion.
The question for the Council, then, is not whether the plan should be
regulatory or non-regulatory. The plan must be regulatory. The real question is,
"How extensive should that regulation be?" Should the plan emulate the State's
approach in Chapter 226, HRS, Chapter 205, HRS or Chapter 205A, HRS?
I will be glad to provide what help I can provide and meanwhile remain as always
Ve ours,
o G~if/~J
Michae . Matsukawa
c: Legislative Auditor
County of Hawaii