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HomeMy WebLinkAboutCOM 0045.043 2002-2004 Testimony of Michael J. Matsukawa Attorney at Law 75-5722 Kuakini Highway, Room 201 Xtc.ervc~ Kailua-Kona, Hawaii 96740 a~ iN Y--- Telephone329-1385 *3`A`~ :'~>n„tv r'.,~nrn In Opposition to Bill No. 163, Draft 2 (General Plan Revision) Members of the Planning Committee and County Council, County of Hawaii I OPPOSE Bill No. 163, Draft 2 because it is based on the erroneous assumption that the General Plan, which serves as the County's long-range comprehensive ;?Ian; can and should be hortatory and without the force of law. First, under Section 226-58, HRS, a county's general plan must include "Implementation priorities and actions to carry out policies to include but not be limited to land use maps programs, projects, regulatory measures, standards and principles, and interagency coordination provisions." Bill No. 163, Draft 2 intentionally omits these items. Second, if the general plan were to be non-regulatory measure, then it would be just an idealized statement of principles without sanctions to buttress the same. Molokai Homesteaders Cooperative Association v. Cobb, 63 Haw. 453, 462 (1981). Third, the long-range comprehensive plan referred to in Section 46-4, HRS, and Charter Section 3-16 is a regulatory measure that has the force of law, not a hortatory idealized statement. Fourth, many land use regulations, including rules for special permits and SMA permits and approvals under the county zoning and subdivision codes, adopt and utilize the general plan as a decision- Comm. Na.~„S.~f3 _ Ref. To: P!esea Ref. Uate making criterion. If the general plan were to be a hortatory measure, then the result described in Protect Ala Wai Skyline v. Land use and Controls Committee , 6 Haw. App. 540, 547 (1987) will arise and such a measure cannot be used as a basis to deny an application. GATRI v. Blaine, 88 Haw. 108, 114-115 (1998); see also Save Sunset Beach Coalition v. City and County of Honolulu, 102 Haw. 465, 481-182 (2003), which is cited in the introduction to Bill No. 163, Draft 2, where the Hawaii Supreme Court explains further how a general plan that has the effect of law functions as adecision-making criterion.' Fifth, Charter Section 3-16(b) contains a consistency provision, like that referred to in GATR/, stating "No public improvement, project, subdivision, or zoning ordinances, shall be initiated or adopted unless the same conforms to and implements the General Plan." If the general plan is hortatory and not a statement of positive law, then the County must approve every application for a public improvement, project, subdivision or change of zone ordinance. I don't believe the voters of the County of Hawaii intended their genera! plan to be a useless measure or that they intender; to delegate absolute discretion over land use measures to County officials. Conclusion Bill No. 163, Draft 2 does not meet the requirements of Section 226-58, HRS, Section 46-4, HRS and Charter Section 3-16. If the County Council intends to enact a general plan that is hortatory and unenforceable, the County Council owes an explanation to the voters of the County of Hawaii as to why it intends to deviate from the requirements of the State legislature and the voters and why it intends to lay the foundation for the eventuality that whereby the County must approve every application for a public improvement, project, subdivision or change of zone ordinance. "Where consistency of a proposed development is evaluated with respect to broad, hortatory policy statements in a general plan, it may be arbitrary and capricious to base a denial on the general plan statement because of their broad an non-specific nature." GATRI, supra at 114.