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HomeMy WebLinkAboutCOM 0042.079 2004-2006 4QJ~SY OR ryw•i HBrrY Kim r~ Lincoln S.T. Ashide Mrryor Cnr/xwotinn Cnansd Gerald'1Hkase ~~>t or N~'N~ A.vsirtant Copimarinn Counsel ~cLIIlt2tf~T D'~ ~2If1T?Itt OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808)961-8251 • FAX (808) 961-8622 February 2, 2005 Honorable Gary Safarik, Chair and Members of the County Council Hawaii County Council 25 Aupuni Street Hilo, HI 96720 Dear Chair Safarik and Members of the County Council, RE: Bill No. 163, Draft 4, County of Hawaii General Plan Corp. Counsel File No. WRK 05-9191 You have asked the following questions: 1. Does the General Plan (Bill 163, Draft 4) meet with our approval as to form and legality? SHORT ANSWER: Yes. 2. The proposed General Plan, Bill 163, mentions green waste diversion, landfill site exploration, and recycling in the Solid Waste section (page 237, Ramseyer). It makes no statement of policy about waste reduction technology. Would any capital budget appropriation for the waste reduction technology for feasibility, site selection, planning or construction be legally questionable because it is not specifically mentioned as a policy in the General Plan? SHORT ANSWER: No. 3. The Council Committee took several parcels in Kona out of the Important Agricultural Land designation base upon the testimony of its landowners. Comm. No._ 7'•,~ P.ef. To: efase~l~ G Qef. irate FFR ~0~ Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 2 Is there merit to a challenge that the Council is unequal in its application of policy to other lands or any other legal principles? SHORT ANSWER: No. 4. The definition of the Conservation Designation is proposed to be expanded as follows: Conservation Area: Forest and water reserves, natural and scientific preserves, [open,] areas in active management for conservation purposes. areas to be kept in a largely natural state. with minimal facilities consistent with open space uses. such as picnic pavilions and comfort stations. and lands within the State Land Use Conservation District. For those properties designated Conservation in the General Plan and which are in the Special Management Area, in part or in whole--regardless of the State Land Use Classification--will the SMA requirement that development be consistent with the General Plan sufficiently limit parcel development to be considered a "takings"? (i.e., LUPAG changes I-3, I-8) SHORT ANSWER: No. DISCUSSION 1. Does the General Plan (Bill 163, Draft 4) meet with our approval as to form and legality? Answer: Bill 163 in its current draft meets county requirements regarding both format and legality. As long as a ramseyered version of the bill is available for the council members and the general public, any concerns that were raised by the court in the zoning code case should be addressed. If there are substantive Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 3 amendments made to the bill at the next (second) reading, the Council may wish to consider laying over the bill for another reading. 2. The proposed General Plan, Bill 163, mentions green waste diversion, landfill site exploration, and recycling in the Solid Waste section (page 237, Ramseyer). It makes no statement of policy about waste reduction technology. Would any capital budget appropriation for the waste reduction technology for feasibility, site selection, planning or construction be legally questionable because it is not specifically mentioned as a policy in the General Plan? Answer: The Hawaii County Charter Section 3-15 provides that the council shall adopt the general plan by ordinance. The plan is to contain a statement of development objectives, standards and principles "with respect to the most desirable use of land within the county for residential, recreational, agricultural, commercial, industrial and other purposes which shall be consistent with proper conservation of natural resources and the preservation of our natural beauty and historical sites. It further provides that the general plan shall provide the "general location and extent of public buildings, the general location and extent of pubic utilities and terminals, whether publicly or privately owned, for water, sewers, light, power, transit, and other purposes." It further provides that "[n]o public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms to and implements the general plan." (emphasis added). Under the environmental quality section of the general plan, it notes that the county's basic industries depend upon a "clean" environment. It states that in "order to maintain an ecological balance for the biological, physical. social and psychological well-being of the island community, it is essential to control pollution, develop more effective solid waste and sewer treatment programs" among other things. Under public facilities: health and sanitation, the general plan notes that "[o]ptions such as a material recovery facility long haul transfer station that would minimize solid waste to be hauled and disposed of at the Puuanahulu landfill; or Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 4 the development of new technologies to manage east Hawaii refuse would be considered" in any update to the solid waste management plan. It is clear that while no specific reference to a "waste reduction technology' is mentioned, the general plan envisions updates to the solid waste management plan and the possible construction of innovative or new technologies. So long as the waste reduction facility helps take care of the problem posed by the closure of the Hilo landfill, reduces the waste going to Pu'uanahulu, and reduces pollution, such a facility implements the general plan. 3. The Council Committee took several parcels in Kona out of the Important Agricultural Land designation base upon the testimony of its landowners. Is there merit to a challenge that the Council is unequal in its application of policy to other lands or any other legal principles? Answer: Review, amendment and adoption of the general plan envisions a process where both state and county agencies as well as the general public provide input on the proposed revisions to the current general plan. The Council heard testimony both written and oral regarding the historical use, the current use, the soils and viability of agriculture on these lands from the landowners and their representatives in addition to the input of the county's planning department. In its deliberative process, the Council necessarily weighs the information provided to it and then must make a decision as to the proper designation of the lands within the framework of a comprehensive general plan for the county. This is a fact and policy based analysis and the decision to retain the existing designation of these lands has ample information presented to the council to justify its decision. The mere fact that there may be similarly situated lands that the Council does not retain in extensive agriculture does not equate to unequal application. The decision to change or retain land use designations is based upon the totality of the information presented to the Council. The fact that the Council may have given more weight to some information is not an error of law or an abuse of its discretion. 4. The definition of the Conservation Designation is proposed to be expanded as follows: Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 5 Conservation Area: Forest and water reserves, natural and scientific preserves, [open,] areas in active management for conservation purposes. areas to be kept in a largely natural state. with minimal facilities consistent with open space uses. such as picnic pavilions and comfort stations. and lands within the State Land Use Conservation District. For those properties designated Conservation in the General Plan and which are in the Special Management Area, in part or in whole--regardless of the State Land Use Classification--will the SMA requirement that development be consistent with the General Plan sufficiently limit parcel development to be considered a "takings"? (i.e., LUPAG changes I-3, I-8) Answer: Overview of Takings Law The Fifth Amendment of the U.S. Constitution provides that private property shall not "be taken for public use without just compensation." Initially "takings" of property were considered to occur only when the government physically occupied or "took" private property. This changed with the U.S. Supreme Court's holdings in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). Cases now address whether a "taking" has occurred by other means than mere physical possession of the land. In Nollan v. California Coastal Commission, 485 U.S. 825 (1987), the court held that the California Coastal Commission could not require a property owner to allow public access across beachfront property in order to obtain a permit to build a new house on shoreline property. The court ruled that there must be a "nexus" between the permit condition/exaction and the burden imposed or benefit enjoyed by the new home. Since the requested access easement was held to not have an "essential nexus" with the impact of building the house, the condition was ruled invalid and a "taking" of the landowner's property. This was despite the Commission's belief that the public interest would be served by a public walkway along the beach. Generally, the legal principles applicable to exactions require that: statutory authority for exactions must exist; the exaction must be reasonably related (nexus) to the public need created by the development; the exaction must not Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 6 deprive the property owner of all viable economic use of his property; the primary purpose of the exaction must be related to the services provided, instead of a general revenue source (disguised tax); the degree of the exaction must be roughly proportional to the impact of the proposed development; the government should have studies which show the need for the exactions and document the nexus with the objective sought. Additionally when looking at the general plan it is important to understand that as a general rule a zoning ordinance is not invalid solely on the basis that it prohibits or fails to permit the "highest and best" or "most profitable" use of the property. Application of current takings law to I-3 and I-8 I-3, although classified in the current General Plan as "resort", is currently zoned by the county as open space and classified by the State as conservation. I-8 is classified extensive agriculture in the current general plan and zoned open by the county and classified as conservation by the state. Any SMA permit would have to be consistent with the county general plan, county zoning and the state land use classification. In this case the state land use classification controls as the state has retained jurisdiction over lands classified as conservation. Based upon the state land use classification as well as the existing county zoning, the landowners have no vested rights to "parcel development" other than what they currently have under the state's conservation classification. The owners can go to the Board of Land Natural Resources to apply for a single family dwelling and other uses consistent with the rules adopted by DLNR. It is possible that if the BLNR denied the request for the home that this could be a taking, if the owners could prove that it was the only economic use of the land. However, this is highly speculative as any such determination would depend on the facts surrounding the specific request. Given the large size of the properties involved, the BLNR could merely require that the site of the home be a substantial distance from specific sites that the BLNR wanted to protect or require that construction occur outside flood or tsunami inundation zones. Orin order to protect significant historic sites or the nesting grounds of turtles, BLNR could require that a home be constructed away from these areas. Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 7 If BLNR did in fact deny construction of a single family residence and if a taking were to be found, it would be the BLNR that would be held to have "taken" property rather than the county as construction of a single family residence is not necessarily inconsistent with the proposed county conservation designation. Generally, conservation designation by the state has not prevented such use by property owners. Yours sincerely, Bf3BBY J ~AE N LEITHEAD-TODD Deputy Corporation Counsel BLT:pc s:depts\County Council\General Plan\Takings Issues Itr to Council 1-OS BLTpc.doc