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HomeMy WebLinkAboutCOM 0042.043 2004-2006 Jarr-04-05 01:54pm From- T-225 P 01/03 F-055 CARISMITH BAIL, IIP , ..~.:a ~ii;~; 1 r~ ALfMITED LlAC1W'1'1'LAW PAR9NCItSHtP 121 WAIANUIINUR A'1fNV(: P.O. Box 686 Hu o,KAWA{{ 96721-0686 ILLEFHONE 80A-935.664} PAx 806.935.7975 W W W.CAFLSMItt•LCQM DIRECT D1AL ND, )KAW AUCHlO~CAFLti[ytp'H-COM January 4, 2005 DELIVERY BY FACSIMILE 961-8912 Gary Safarik Chairman Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Pete Hoffman CaChair, Planning Committee Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 ,/TC. Angel Pilago Co-Chair, Planning Committee Hawaii County Couucit 25 Aupuni Street Hilo, Hawaii 96720 Re: 'Bill No. 163, Drafts I, 2 and 3 Relating to the Countyof Hawaii General Plan: Hawaii Counri General Plan Revsions Dear Council: This firm represents various land owners and developers on the island, some of whom are concerned that the proposed revisions to the Hawaii County General Plan for the County of Hawaii ("General Plan") comply with legal requirements set forth in the Charter of the County of Hawaii, ("Charter"). We understand that the Hawaii County Council's will be holding public hearings to hear testimony on Bill No. 163, Draft 1, 2 and 3 relating to the General Plan on January 3 and 4, 2005. We understand that these are the first public ~Iearings on the General Plan held by at least six of the nine members of the County Council. HUNOI.OW Knl.Olel ~ H40 ~ KUNA ~ MAUI ~ GVAM - SAII'nN LOS ANGelES Comm. No. t• y Ref. T~ Preseele/ Ref. date ~A Jan-04-05 01:54pm From- 7-225 P 02/03 F-055 January 4, 2005 Page 2 Under Section 3-1 S of the Charter, the County Council shall adopt by ordinance a general plan. The Council cons[ adop[ ordinances pursuant to Section 3-10 of the Charter, which scares that ordinances shall be passed after two readings on two sepazate days. The Charter further requires an affirmative vote of a majority of the entire membership as necessazy for final action, colder Section 3-7 of the Charter. Pursuant to Section 3-15 and 6-Q.3 of the Charter, the Planning Commission must review the General Plan, its amendments and other plans and modifications thereof, and conduct public hearings in every case pre or to action on any matter upon which the Planning Commission is required by ]aw or the Charter to act. Draft 1 was released for review and comment on January 16, 2002, Draft 2 on June 4, 2004 and Draft 3 on November 10, 2004, less than thirty days before six of the nine councilmembers came on board. A majority of the membership of the County Counci111ave not had an opportunity to hold and to heaz public testimony on the amendments as the public hearings on the revisions to the General Plan were heard slatting in early 2002. This presents a possible legal issue, as the new members of the County Council, pursuant to the Charter cannot vote on matters before them unless they review the General Plan, its amendments, other plans and modifications, and public hearings are held, For this reason, we urge the County Council not to Wish to judgment, Additionally, arguing by analogy, the lack of opportunity afforded to the public to have their testimony personally heard by all County Council members, or in lieu thereof, to have all County Council members consider the whole record, including all transcripts of the heazings on revisions to the General Plan before a final decision on the General Plan has been made creates a situation where Council members are being asked to vote on a bill without considering all of the facts presented. Although the Charter does not itself set forth such a requirement, arguing by analogy, under Section 91-11 of the Hawaii Revised Statutes, when officials of an agency who are to render the final decision in a contested case leave not heard and examined all of the evidence, and the decision is adverse to a party to the proceeding other than the agency itself, a decision cannot be made until: 1) a proposal for the decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the parties; Z) an opportunity has been afforded to the each party adversely affected to file exceptions and present argument to the officials who are to render the decision; and 3) said officials personally consider the whole record or such portions thereof as maybe cited by the parties. Trr this way, all parties have an opportunity to present all material evidence relative to the subject controversy determining the rights, duties or privileges of the parties involved in the proceedings and to have all material evidence personally considered by all officials rendering final decisions in their cases. Here we have a situation where six of the nine councihnembers have not personally heard all public testimony, and in lieu thereof, have probably not been afforded an opportunity to personally review all public testimony on record, including all transcripts of the heazings on amendments to the General Plan. We understand that the Hawaii County Council held a public hearing to hear testimony on Bill No. 163, Draft 1, 2 and 3 relating to the General Plan on January 3, 2005 and will hold another hearing on revisions to the General Plan on January 4, 2005. However, the Planning Committee began its review of the General Plan at a regulaz meeting in Hilo on February 20, 2002, followed by two workshops, a site visit, eight public .'an 04-05 01:55pm From- i"225 P.03/03 F-055 January 4, 2005 Page 3 hearings throughout the island, two more workshops, two tegulat meetings, and three workshops. See Report on the County of Aawaii General Plan Bill 163, Draft 2. An additional workshop was held on December 18, 2003 to concentrate on comprehensive review. Id. Although this testimony was heard and considered by three of the nine current Councii members, at least six of the nine current Council members cannot claim this backgrotmd. All County Council members must have an opportunity to consider the entire record, including all transcripts, and all previous testimony by the public on revisions to the General Plan beginning with the first meeting held on February 20, 2002, Such testimony in support or in opposition to proposed revisions to the General Plan should be personally considered by all tnembers of the County Council before ct final decision is made. In this way, members of the public will have been afforded an opportunity to have alt testimony heard. This will ensure that the County Council renders a decision on revisions to the Generai Plan that are an accurate reflection of the public and their needs. Based on the Foregoing, we respectfully request that the Hawaii County Council's Committee on Planning postpone the January 4, 2005 hearing on Bill No. 163, graft 1, 2 and 3 relating to the County of Hawaii General Plan, to give the County Council time to hold public hearings and review and consider all of the proposed amendments to the General Plan including testimony presented by the public. Thank you for your consideration. Sincerely, CARLSMI~~~ . ae K. I{. Kawauchi JKK/JKK