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HomeMy WebLinkAboutRES 269 Draft 03 2002-2004 +tr or N~~ 6i' COUNTY OF HAWAII STATE OF HAWAII i ~Tf O~'M?M RESOLUTION NO. 269-04 Draft 3 A RESOLl1TION REQUF,STING THE OFFICE OF THE CORPORATION COUNSEL, COUNTY OF HAWAII, TO SEEK EXPEDITED BRIEFING AND DECISION BY THE SUPREME COURT OF THE STATE OF HAWAI`[ IN THE APPEAL OF CIVIL CASE NO. 00-I-0192K, WALTER JOHN KELLY ET. AL. VS. 1250 OCEANSIDE PARTNERS ET. AL. WHEREAS, the Council of the County of Hawai' i is an elected, policy-making legislative body and bears considerable responsibility for planning and land use decisions in the County of Hawai' i. as well as the lawful integrity of those decisions; and, WHEREAS, the timely and just resolution of disputes pursuant to land use approvals and permits granted by the Hawaii County Council and/or county planning officials is a matter of great and enduring concern to the Council; and WHEREAS, the Council has followed with keen interest the litigation in the case of Wafer John Kelly et. a/. vs. 1250 Oceanside Partners et. a/., Civil No. 00-1-0192K (the "Lawsuit"), filed in the Circuit Court of the Third Circuit of the State of Hawaii, to include the'fhird Circuit Court's decision contained in the "Third Amended Final Judgment' rendered on August 27, 2004 (the "Judgment") and various orders issued by the judge, the Honorable Ronald Ibarra, including the land use entitlement rulings set forth in the Court's Amended Findings of Fact; Conclusions of Law; Order regarding Trial on Count IV of the Fifth Amended Complaint dated October 22, 2003 (the "Land Use Order"); and WHEREAS, resolution of the issues surrounding the Hokuli'a project in South Kona and the 1998 development agreement executed between the project developer, Oceanside 1250 Partners, and the C ounty of Hawaii, are a matter of grave and far-reaching concern to this Council, successive Councils, and the citizens of the County of Hawaii; and WHEREAS, the Hawaii County Council does not presume to speak with authority on matters pertaining to the Lawsuit, but does wish, in the spirit of plain and genial communication, to express lour basic concerns as they relate to our request for the Lawsuit, on appeal. to he heard by the Supreme Court on an expedited basis. These concerns are as follows: I. County officials require actionable clarity in statutes relating to land use and the financing of public infrastructure. Local legislators in Hawaii, as throughout the nation, are challenged to welcome and accommodate new tides of human settlement and population growth. We also are 1 sutnmoned to protect our lands and honor our host culture. To embrace these challenges, we cannot resent the inevitability of the future. Nor can we obstruct it in dogmatic fashion. We must strike a vibrant and generous balance. To do so, we must carefully evaluate various permitting, zoning and re-zoning requests for new developments and, in lieu of historically declining federal and state revenue sharing, assess legitimate and proportional costs to developers to pay for needed public infrastructure and to mitigate the impacts of new growth and population. One of the tools available to county government to responsibly effect and oversee planned development is the authority granted by Chapter 46, part VII, Hawaii Revised Statutes (HRS) and Chapter 30, Hawaii County Code ("Development Agreement Code") for the County to enter into development agreements to assure that particular projects may proceed in accordance with applicable state statutes and county ordinances and to enable the County to contract with developer(s) to ensure commitments for on-site and oft~site development requirements necessary to preserve the public health, safety and welfare. The development agreement struck between the County and Oceanside 1250 Partners in April 1998 represented the inaugural implementation of this planning and infrastructure financing tool in Hawaii County. It was the culmination of many dozens of noticed public hearings and meetings over the span of seven years. The resulting agreement reflected much down-sizing of the original project proposal and provided public benefits and infrastructure including: (I) Construction by the developer of a bypass highway (the "Mamalahoa Bypass") from Keauhou to Napo'opo`o at a cost estimated to approach $50 million. This bypass highway was identitied in the Hawaii County General Plan adopted in 1989 and has been described as "the only project that can significantly relieve the Honalo-Captain Cook bottleneck." Nonetheless, the road - 60% completed at the time of Judge Ronald Ibarra's injunction order in September 2003 remains hostage to the impasse of the Lawsuit. [ts court-ordered delay prolongs traffic circulation woes in South Kona. (2) Provision of a 140-acre shoreline parcel as a public park, for which the estimated land value, including improvements, is $16 million. The residents of Hokuli'a are obligated to maintain the shoreline park for public use in perpetuity. (3) Establishment of an employee housing program; and (4) Dedication of additional acreage for the Kona Scenic Park. Pursuant to the Development Agreement and various permits and approvals granted by Hawai' i County, Oceanside 1250 Partners proceeded at considerable cost to fulfill its obligations to provide and construct the public improvements sought by the County. The present injunctions now harm the County and its citizens. In tum, the County must ask the Court to consider the consequences of such intervention against an agreement reached exhaustively and in good faith. 2 2. Development approvals and timelines require genuine conclusiveness, not havoc, uncertainty and liability. Hawai`i's development agreements statute was enacted subsequent to the Hawaii Supreme Court decision in the Nukoli`i case (County of Kauai v. PaciFc Standard Life Insurance Co. where the Court held that development rights did not "vest" until final discretionary permits were issued. Based upon this decision and the legislature's adoption in 1985 of Chapter 46, Part VII, HRS, the counties were afforded a tool to "encourage the vesting of property rights." Specifically, §46-121, HRS, states: "The purpose of this part is to provide a means hr tivhich an individual mqv he assured a/ a specific point in trme that having me[ or having agreed to meet all of the terms and conditions of the development agreement, the individual's rights to develop a p~roperh~ in a certain manner shall fie vested. " In the case of the Hokuli'a project, some $350 million of investment and construction activity occurred after Oceanside 1250 Partners and the County of Hawaii signed and executed the 1998 Development Agreement. Sales of lots commenced; reportedly, 190 lots were sold by the time the September 2003 injunction was imposed. Building permits had been issued to some lot owners; still other lot owners had retained architects. All this activity was predicated on the reasonable belief that all necessary approvals were valid and conclusive. Now, in the wake of the Third Circuit Court's decision and the failed mediation facilitated by retired judge Patrick Yim, the County of Hawaii finds itself threatened by potential lawsuits from Hokuli`a lot owners. This is an unenviable and untenable position for a political subdivision of the state to find itself. The British statesman Edmund Burke (1729-1797) suggested that "nothing turns out to be so oppressive and unjust as a feeble government." We fear that without affirrnation of a standard of conclusiveness, Hawaii County, along with our neighbor counties, may be so enfeebled by the Third Circuit Court's decision that our ability to grant and uphold necessary planning approvals and negotiate agreements with developers may rightly be deemed hapless and suspect. 3. The level of agricultural use in agricultural subdivisions should be defined by the state legislature and/or the county councils. We are concerned and troubled by the regulatory requirements contained in the Land Use Order relating to prohibition of "luxury" homes in the Agricultural District and the requirement that homeowners in agricultural subdivisions present a "viable" agricultural plan, not otherwise set forth in any state statute, rule or regulation. We believe these requirements usurp the statutory powers of the state legislature and the county councils. On this matter, we believe that the Supreme Court's ruling in the case of Save S~mset Beach Coalition et al. vs. the City and Coiottr oJ'Honoltdu, et al. is on point. That ruling upheld the legislative authority of the Honolulu City Council to rezone and affirmed that the State Legislature must establish standards and criteria in order for the agricultural mandate of the State Constitution to be implemented. The Court held that Honolulu's rezoning "was a legislutive act and 3 thus as accorded deference on jttidicial appeal. " The Court further stated that Article Xl, section 3 of the Hawaii State Constitution "is not self=executing" and requires the Legislature to provide statutory guidance for its implementation. In lieu of the Legislature's inability for over a quarter century to adopt a statute implementing such standards and criteria for important agriculture lands, we believe that the reasonable discretion of the counties to evaluate and approve agricultural subdivisions must be honored. Therein lies the crux of the predicament posed by the Third Circuit Court's land use order. Many citizens within the Agricultural District now live on properties where little or no farm activity is conducted or farm-related income generated - in Hawaii County and throughout the State of Hawaii. We see no public purpose served by subjecting our residents to the anxiety and unfair exercise of meeting a retroactive court-imposed standard of agricultural viability. Moreover, we note that in June 2001 the state Land Use Commission rejected rules proposed by the Sierra Club to require a proposed subdivision to "prove" it is t~~rly agricultural if it contained houses adjacent to golf course fairways, resort-like features, prices exceeding the median price of houses in the state, or dwellings larger than 3,500 square feet. By the assessment of the Hawaii County planning director and the State Department of Agriculture, the full complement of agricultural activity at Hokuli'a, as proposed by the developer, greatly exceeds the property's former productivity as marginal, seasonal grazing land. Finally, we notice with some irony that the Third Circuit Court directive to obtain state Land Use Commission reclassification to the Urban District can only serve to reduce the agricultural component that Hokuli`a now so willingly affords. 4. There comes a time when arguments must yield to reason and good-natured resolution. The prolonged litigation related to Hokuli'a warrants a prompt and conclusive finding by the Hawaii Supreme Court. We need a just, civil conclusion to this arduous, costly Lawsuit and the arguments surrounding it. We owe that conclusion to the people of our island and our state. The public interest compels it. An abiding spirit ol~ aloha yearns for it. Despite much inflamed rhetoric and wounded feelings in our community, we see no villains in this case. On the one hand, we see inspired champions of native Hawaiian rights and probity in land use. On the other hand, we see an earnest developer demonstrably and graciously seeking to do what's best. All parties to this case. and the County of Hawaii, deserve an outcome to this dispute that is clear and conclusive. 4 NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII that the Council respectfully requests the Office of the Corporation Counsel to seek expedited briefing and decision by the Supreme Court of the State of Hawaii in the appeal of the civil case of Walter John Ke//y et. a/. vs. 1250 Oceanside Partners et. a/. (Civil No. 00-I-0192K). BF. IT FURTHER RESOLVED that the Clerk of the Council of the County of Hawai' i is instructed to distribute copies of this resolution to the Honorable Ronald Ibarra. Chief.ludge, Third Circuit Court; Mayor Harry Kim; Lincoln Ashida, Corporation Counsel; Christopher Yuen, Planning Director: Bruce McClure, Chief Engineer, Department of Public Works; Walter John Kelly: Protect Keopuka 'Ghana; 1250 Oceanside Partners; Chiyome L. Fukino, M.D., Director, Department of I lealth; and Peter T. Young, Director, Department of Land and Natural Resources. Dated at _ Hilo ,Hawaii, this lOtl: day of PYovsr~er .2004. Introduced by: _ ~ , e UN IL M BE , COUN Y OF HA I`1~ I,F/rf COUNTY COUNCIL ROLL CALL VOTE County Of H3Wal`i AYI?S NOES AnS I?X Hilo, Hawaii ARAKAKI CHUNG I herch~ cerlih' that the foregoing RESOLUTION was by I?I,ARIONOFP the nom indicated to the right hereof adopted by the COUNCII, o(the I IOLSCI IUI I coonnofn;mar~on November 10, 2004 JACOl3SON RP,YNOLDS ATTEST: SAFARIK fULANG TYLER y , %°COUNTY CLERK AIRMAN & PRESIDING OFFICER Reference: C-$46.2 RESOLUTION NO. (Draft 3) 5