HomeMy WebLinkAboutCOM 0770.004 2002-2004
Kiriu, Connie
From: Leithead-Todd, Bobby Jean
Sent: Monday, October 04, 2004 6:13 PM
To: Kiriu, Connie
Cc: Doran, Charmaine; Yuen, Chris; Torigoe, Ivan
Subject: RE: Request for Updated Opinion
Still working on request. Out of office next two days for contested case hearings and then next two
days for LUC and BOA meetings.
The Mike Matsukawa opinion of 1991 sets out the basic analysis that should apply to an addition of
conditions when a landowner comes in for a time extension.
Briefly, I think the critical issue is whether the landowner has "vested" his rights through a "final
discretionary action." Additionally, one must look at whether the landowner has changed his position
in reliance on government assurances. What you are looking at is the question of "vested rights" and
,.equitable estoppel."
In most time extensions, the developer has done little or nothing to comply with the conditions of the
rezoning. However, in some cases, a landowner has substantially complied with the conditions and
has expended a lot of money in reliance on the underlying zoning.
Generally, even "permits for buildings and businesses are not per se protected against revocation in
effect by subsequent enactment or amendment of zoning laws prohibiting the building, business or
use for which they were issued." County of Kauai v. Pacific Standard Life Insurance Co., (Nukolii) 65
Haw. 318 (1982). Thus when the county general plan was amended, a landowner could not build
pursuant to his underlying zoning, as it was inconsistent with the amended general plan. GATRI v.
Blane, 88 Hawaii 108 (1998). It is clearly established in Hawaii case law that counties can downzone
property. If it is permissible to downzone, then it is clearly permissible to add conditions upon
granting an extension of time, so long as the landowner is not being discriminated against, has
acquired vested rights or has otherwise a right to equitable estoppel.
So long as the type of amendments/conditions sought by the Planning do not violate any of the
above concepts, the original rezoning ordinance can be amended. Thus if, the conditions are similar
to those imposed on other property that currently comes in for rezoning, is not adding additional
requirements to a condition that has already been fulfilled or substantially complied with (or the
landowner has expended substantial sums of money and has acted in good faith), I see no problem
with the imposition of new conditions that were not applied at the time of the original rezoning.
I apologize that I don't have a more formal fleshed out opinion for you. Basically, the analysis in the
last two paragraphs of Mr. Matsukawa's 1991 opinion are still valid today.
-----Original Message-----
From: Kiriu, Connie
Sent: Monday, October 04, 2004 8:43 AM
To: Leithead-Todd, Bobby Jean
Cc: Doran, Charmaine
Subject: Request for Updated Opinion
What is the status of WRK 04-8468 (Request for an updated opinion on prior Corp Counsel opinions relating to
the issue of changing or adding new conditions to a request to extend the time of compliance of a zoning
1 Comm. No.
Ref. To:Pr
Ref. Cate_,~
ordinance. Also asked whether the analysis described in Matsukawa's opinion should be provided in the PD's
recommendation.
The Planning Committee will be discussing the particular time extension request that prompted Director Yuen's
position on Tuesday.
2
OF?..;E OF THE CORPORA T1%_.4 COUNSEL
Inter-Departmental Work Request Form
G FICA
DATE: 9/13/04 y,
TO: OFFICE OF THE CORPORATION COUNSEL 04p ' P'7 I/
ATTN: obby Jean Leithead-Todd
Name of Attorney assigned to your Department)
FROM: Connie Kiriu Telephone No.: 8388
Name)
Legislative Auditor's Office E-mail: ckiriu@co.hawaii.hi.us
(Department)
CONTACT Telephone No.:
PERSON: E-mail:
(Name)
TYPE OF WORK REQUESTED:
® Opinion **Optional: If applicable, please indicate a specific deadline
? Draft for Corp. Counsel response:
? Review and Comment
? Other
BRIEF DESCRIPTION OF WORK NEEDED:
1. Please provide an updated opinion on prior Corporation Counsel opinions dated April
20, 1993 (Gerald Takase), May 7, 1991 (Michael Matsukawa), & September 11, 1989 (Fred
Giannini). All opinions, which were recently transmitted to you and Director Yuen, relate to
the issue of changing or adding new conditions to a request to extend the time of
compliance of a zoning ordinance.
2. Should the analysis described in Matsukawa's opinion be provided in the Planning
Department's recommendation?
Thank you very much.
*Please route this form to the Office of the Corporation Counsel accompanied by your documentation.
You will receive a copy of this form, indicating the assigned attorney, entry number, and the expected
response date.
Please remember to use the Entry Number appearing below on all subsequent correspondence
or submissions to Corporation Counsel's Office.
For Corporation Counsel Use Only: / p y
ENTRY NO. WRK ((3g- I'~- / Date Received/Assigned: l l3 By:
Attorney Assigned:
Response Deadline:
Li 4
5: Departments/Corporation Counsel/Interdepartmental Work Request Form2
Kiriu, Connie
From: Kiriu, Connie
Sent: Wednesday, August 11, 2004 2:23 PM
To: Yuen, Chris
Cc: Leithead-Todd, Bobby Jean
Subject: Rezoning Conditions Memo 04-11
Thank you for copying me with your memo to planners regarding the inclusion of the affordable housing condition & fair
share assessment in future time extension requests.
Before I forward your memo to the Council, could you look at Corporation Counsel Memos dated April 20, 1993 (Gerald
Takase), May 7, 1991 (Michael Matsukawa), & September 11, 1989 (Fred Giannini), which advised prior council on the
same. I'll send a copy of the memos to you. Would you ask Corp Counsel for an update to the 3 opinions or do you want
us to ask?
While all opinions indicate adding conditions on time extensions are okay, there are limitations mentioned in Matsukawa's
memo that should be provided when analyzing the added condition(s). Will this analysis be included in Planning's
recommendation and, therefore, part of the Council's record on approval?
Some Council Members would want to know the extent of its legal authority.
Thanks for the heads up.
t
OtV OF M~
Harry Kim Christopher J. Yuen
Mnynr
Dimc(nr
OF M~'
Roy R. Takemoto
Depu(v Dimcmr
Gunfv of ~ttfvnll r°-q r-)
PLANNING DEPARTMENT c
101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720-3043 ' C
(808) 961-8288 • Fax(808)961-8742 0
-v
MEMORANDUM
NO. 04-11 u w
August 9, 2004
TO: PLANNERS
FROM: CHRISTOPHER J. YUEN
Z.'- I
Planning Director
SUBJECT: REZONING CONDITIONS /
We sometimes get applications for time extensions for old rezoning ordinances that do
not contain the conditions for "fair share" and affordable housing that have been standard
for many years on new rezonings. Typically, these old ordinances are 10+ years old and
will have to go to the council for time extensions.
As a matter of regular practice, we should add the current affordable housing condition
(referring to Chap. 11) and the current "fair share" language to our recommendation and
draft ordinance if we are recommending the time extension. These older rezonings,
which have not been used by the landowner for many years, should follow the same
conditions as more recent rezonings, and make the same contributions for affordable
housing and infrastructure.
CJY:pak
Wpwin60/Chris/Staff Memo - Rezoning Conditions
cc: Ms. Bobby Jean Leithead-Todd
Ms. Connie Kiriu, Legislative Auditor
Hawaii County is an equal opportunity provider and employer.
MtY oI b
Stephen K Yamashiro Richard Wurdeman
Major Corporation Counsel
J~h•oi•H~'8t
Clot fv of panivall
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 967204262 • (808) 961.8251 Fax (808) 969.7049
FAMILY SUPPORT DIVISION: HIL0-688 Kinoole Street, Suite 214 • Hilo, Hawaii 96720 (808) 961-8375 • Fax (808) 935-7.428
KONA-P.O. Box 1748 • Knlakekua, Hawaii 96750 (808) 324.7117 • Fax (808) 324-1150 _
April 20, 1993
Honorable Takashi Domingo
Chairman, Committee on Planning
County of Hawaii
25 Aupuni Street
Hilo, Hawaii 96720
Dear Chairman Domingo:
Re: Amending Zoning When Property Owner Requests
Additional Time To Complete Conditions
A question has been raised as to whether or not property
which has been re-zoned from residential agriculture, (RA) to
agricultural, (AG) could be re-zoned to the earlier designation
when an owner requests additional time to complete conditions of
re-zoning.
It is our opinion this would be an inappropriate amendment
to a request to for an extension of time to complete the
conditions of the re-zoning. We refer you to our earlier
opinions of September 11, 1989 and May 7, 1991, regarding the
subjects of additional conditions upon the time extension
request which we have included for your review.
In those, we have allowed the imposition of additional
conditions which would further the purposes of the zoning code
or the general plan. However, it should be recognized that
there is a requirement of a reasonable relationship between the
conditions and the public health, safety and welfare that these
conditions would provide for. In re-designating the zoning of a
parcel, we feel that there may be a deprivation of rights which
was not anticipated nor called for by such a request.
Honorable Takashi Domingo
Page 2
April 20, 1993
It is our opinion that such a change would go beyond the
areas in which amendments may be made, those being in the areas
of health, safety and welfare. Therefore, it is our opinion
that such a change would not be permissible. Should you have
any further questions, please feel free to contact this office.
Sincerely,
RICHARD D. WURDEMAN
Corporation Counsel
By_
GE TAKASE
Deputy Corporation Counsel
GT:ch
Enclosures
98721
Mj) or
{ich.~el J. M3tsuk~..a
_ Coryoratwn Counwl
+
Steven Christensen
. Anuw~m Corpcianon Cnunxl
° Office of the Corporation Counsel
f-
Hilo t~goon Centre • 101 Aupunl Street, Suite 325 • Hilo, Hiwau 96720 (606) 961.6251
FIIE COPY
May 7, 1991 CPV CHIEF
ACC
CC
Councilman Takashi Domingo -
Chairman, Committee on Planning
County Council
County of Hawaii
Hilo, Hawaii
Re: Review of Re-Zoning Ordinances
Ordinance 341, as amended by Ordinance
85-18 (Pheasant Ridge)
Dear Councilman Domingo:
In response to your personal request on the council's
authority, I am replying specifically to your question of
whether the council may add further conditions to the
provisions of the above-noted ordinance at this time. The
county council may enact any legislation it desires in the
area of land use under Section 46-1.5 (13), HRS and Section
46-4, HRS.
Zoning and other land use regulation must be reasonable
and must advance a legitimate public purpose. Section 25-18
of the county code not only allows the amendment of the use
but also allows "changing any other provision" of the zoning
code when public convenience or public welfare requires such
additional changes. Section 25-20 of the county code also
allows the imposition of "conditions which would further"
the purposes of the zoning code and the general plan and
other related ordinances of the county.
It is common to find exactions being demanded of the
landowner as conditions necessary for the public welfare.
Such demands are imposed for various reasons - to supplement
public resources, to mitigate the effect of the proposed new
use, to correct or to update a prior decision, to reinforce
existing regulations or to help "plug a loophole" or to
prevent an abuse of the existing code.
Whether the condition is set forth on a particular
parcel (as is the case where a landowner seeks a change of
zone) or is set forth in a general amendment affecting all
land in designated areas (as in the case where the county
seeks a change of zone), the county must still operate
within constitutional limits - is a legitimate state
interest being advanced, is the demand nondiscriminatory and
reasonable and does the demand bear a reasonable connection
to or rational nexus to the property or use in question.
As stated in the previous opinions from our office,
there are several limitations on the out-right imposition of
additional conditions. First, the proposed addition must be
nondiscriminatory, must be reasonable and must advance a
legitimate state interest. Second, the existing
circumstances or facts must justify the proposed addition.
Third, the proposed addition must not interfere with or
hinder the landowner's rights as defined in County of Kauai
v. Standard Life Insurance Co., 65 Haw. 318 (1982):
"Life of the Land therefore teaches that
final discretionary action constitutes
official assurance for zoning estoppel
purposes. This rule acknowledges the
incremental nature of the modern development
process and strikes the appropriate balance
between competing private and public
interests. It preserves government control
over development until the government's own
process for making land use decisions leaves
nothing to discretion. A proper
understanding of the lat discretionary action
in a governmental process will lead to
predictable results consistent with the
important public policy considerations that
underlie Hawaii's estoppel rule.
In each case, then, the central focus
must be on the existing legal process.
Identification of the operative mechanisms
also will determine whether analogous
governmental actions give rise to a similar
right to rely.
In this case it is undisputed that the
last discretionary permit action by the
County was the April 9, 1980 vote of the
planning commission authorizing a Special
Management Area (SMA) use permit for the
Nukolii development. The SMA permit approval
was nonlegislative action imposing new
conditions on the development which expressly
made compliance therewith precedent to
issuance of a building permit. The SMA
permit is analogous to the variance granted
in Life of the Land and would constitute
final discretionary action for estoppel
purposes * * 65 Haw. at 329-30.
In summary, the council must determine exactly what
conditions, if any, it seeks to add to an already existing
rezoning measure. Thereafter, the council must determine
whether there is a factual basis for that condition. Then,
the council must determine whether the imposition of that
condition may be discriminatory if applied only to the land
under consideration. Next, the council must determine at
what stage of the permitting-planning process the landowner
is and whether certain "final discretionary approvals" have
already been granted so as to estop the county from adding
more conditions.
It is difficult to give you a "yes" or "no" answer
since each case must be analyzed carefully in light of the
existing facts and law of the case. Please call me if you
have further questions. Thank you.
Yours Y,
Michael J. Matsukawa
cc: Mayor Inouye
Norman Hayashi
Bruce McClure
Bernard K Alum
Mayor
Richard 1. Mlyamoto
Corporanon Counsel
Office of the Corporation Counsel SlevenChrin
y'F~"' Auisu~nt Corporation tionnon Couns<I
Hllo lagoon Centre a 101 Aupuni Street, Suite 325 • WIo, Hawall %720 • (808) %1.8251
September 11, 1989 C 0 Tly
Honorable Russell S. Kokubun,
Chairman, and Members
County Council
Ccunty of Hawaii
Hilo, Hawaii 96720
Dear Council Members:
Re: New Conditions Added to Rezoning Ordinances
When Property Owner Requests Additional Time
to Complete Conditions
This is in response to your question, raised at the August 30,
1989 council meeting, as to whether or not conditions may be
added to an ordinance to rezone property when the owner of the
subject property requests that the ordinance be amended to allow
more time within which to complete all of the conditions imposed
in the rezoning ordinance in effect. Our response is that
conditions may be added to the ordinance, but that they should
pertain only to factors or subjects which relate to the issue of
the extension of time.
Many ordinances which amend Chapter 25 of the Hawaii County Code
(the zoning code) include a list of conditions with which the
owner of the rezoned property must comply within a certain time
period because the council has determined that these conditions
are necessary to mitigate certain identified negative effects of
the rezoning. These conditions may include such factors as
providing affordable housing, constructing roads, curbs, sewers
and other necessary improvements, and contributing money to
assist in improving the adjoining public streets in anticipation
of increased traffic caused by the new zoning. These conditions
will have time limits on them, sometimes varying from condition
to condition. A standard section of the ordinance usually
provides a method for extensions. An example of such an
extension procedure would be as follows:
Honorable Russell S. Kokubun,
Chairman, and Members
Page 3
September 11, 1989
(1982). For example, where the rezoning is anticipated to cause
increased traffic problems, it is reasonable to require that the
owner contribute money or land for roadways or other actions to
ameliorate those problems. Johnson y Glen, 246 Ga. 685, 273
S.E.2d 1 (1980).
Because of this requirement of a reasonable relationship between
the condition and the public health, safety, or welfare,
conditions which are added on when an extension of time is
granted should be limited to those relating to the reason for
the extension. Otherwise, they could be challenged as being
arbitrary or discriminatory. For example, assume that a
rezoning ordinance had required, among other conditions, that
the property owner build an access road and a drainage channel
within one year after plan approval is granted. After one year,
the owner has built the proper road, but needs another year to
complete the channel. If the extension is granted, the council
may impose new conditions on the channel construction which
conditions are made necessary because of the time delay, but no
new conditions may be imposed on the road. The road
construction has already satisfied the valid requirement
relating to public safety and welfare. A change in that
requirement would be arbitrary and discriminatory. However, the
channel requirement is unsatisfied. It may be changed to comply
with the needs of public health, safety and welfare.
Please contact this office should you have any questions.
Very truly yours,
RICHARD I. MIYAMOTO
Corporation Counsel
By
FREDERICK GIANNINI
Deputy Corporation Counsel
FG:hc
xc. Mayor's Read File