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HomeMy WebLinkAboutCOM 0138.000 2004-2006 ,~1V Of N~ ' Phone: (808) 961-8264 FRED C. HOLSCHUH, M.D. = ~>,i~~;: Cmuicilnaember ~ FaX: (gO8~ 961-8912 1F~ OF~NF~~' HA WAIT CO LINTY CO UNCIL County of Hawaii Hawaii County Building 25 Aupuni Street, Stdte 709 • Hi[o. l/awni `i 96720 ' --i F.. - i February 24, 2005 Mr. Bob Jacobson Vice Chair Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Mr. Jacobson: r 1 1 It is with a great deal of sadness that I am writing this letter to you to express my extreme displeasure with your February 4, 2005 testimony to the legislature opposing H.B. 1418. I am sad because in the last council term, although we disagreed on a number of issues, I enjoyed working with you and shazing our healthcaze experiences. I will fist my concerns about your letter in bullet points for clarity: ¦ I have re-read your letter many times and do not see that you are testifying "as an individual". I have written many dozens of letters to the legislature, etc. over the past two years, and unless we have agreed, in a public council or committee meeting on an item, I always say "as an individual". ¦ I'm sure you don't agree with Mayor Kim's February 4, 2005 three page testimony on HB 1418, but his point in the last paragraph on page 2 concerning _ _ commitments we must honor" is a powerful statement. ¦ You say: "The people of my island don't want this bill". This is a preposterous statement. Do you presuppose to speak for all "the people of my island", much less all your constituents? ¦ I know you are very passionate about environmental issues, and 1 and all of us on the past and current council share these concerns. I don't fault your opposition to HB 1418, but I do fault your written comments in this testimony. ¦ Which brings me to my final point. Your third sentence in the first paragraph: " This is the same _ _ comparing this action to the repeated rape of a child. I find this repugnant and feel you should be ashamed to put this kind of statement in public testimony on council letterhead, as Council Vice Chair. If you wrote all this, with your health professional experience, I find it in very bad taste. If it was Comm. No. (3 Ref. To• Ref. Uate Letter to Bob Jacobson/Feb. 24, 2005 -Page 2- written by your staff and you didn't pay attention to the words, that is, in my opinion, very poor judgment. I am sending copies of this letter to Mayor Kim, Rep. Herkes, and our colleagues. Sincer(e`ly,,~ Fred C. Holschuh, M.D. Cc: Mayor Harry Kim Rep. Bob Herkes Chair Safarik and Council Members I ~~~U~'1 HB1418 Bill Status Page 1 of 1 Hawaii State Legislature Bill Status HB1418 Generated on 2/23/2005 2:34:20 PM Measure Title: RELATING TO LAND USE. Report Title: Land Use; Agricultural Subdivisions Description: Redesigna[es certain residential subdivisions in the land use agricultural district into the rural district, subject to certain criteria. Package: None Companion: Introducer(s): SAY, HERKES, KANOHO Current Referral: WLO/AGR, EDB Date ~ Status Text U27/2005 ~H Introduced and Pass First Reading 1/31/2005 ~H Referred to WLO/AGR, EDB, JUD, referral sheet? ~/~/2005 ~ Bill scheduled to be heard by WLO/AGR on Saturday, 02-05-OS at 8:30 am in House conference room 325. 2/4/2005 ~H Re-referred to WLO/AGR, EDB, referral sheet 12 x/5/2005 H The committee(s) recommends that the measure be deferred 009-05.. 2x9/2005 ~H The committee(s) recommends that the measure be deferred. $ =Appropriation measure ConAm =Constitutional Amendment HR1418 Pagc 1 of4 Report Title: Land Ose; Agricultural Subdivisions Description: 3edesi grates certain residential subdivisions in the land use agricultural district into the rural district, subject to certain criteria. HOUSE OF REPRESENTATIVES ~ ~ B ~ N ~ ~ 1418 TWENTY-THIRD LEGISLATURE, 2005 STATE OF HAWAII A BILL FOR AN ACT relatinq to land use. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII: 9 ECTIGN 1. While Hawaii is a state committed to conserving and protectinq ag ri ccltural lands, ?nt all of the lands classified as agricultural are fit for agricultural purposes. In particular, lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class L and e: are considered marginal and may be better suited for non-agricultural purp~~s Fps. The amount of land designated in the agricultural district far exceeds the amount of lard c~assified for urban and rural uses combined. In 2003, an estimated _,932,429 acres of land were i¢ the agricultural district (forty-seven per. cent), whereas, there were only 196,215 acres of urban land (five per cent) and 10,108 acre-,s of rural land (Cwo-tenths of one per cent). The vast amounts of land nlassi_fied as agricultural stems from the State's practice of designating the agricultural classification a "catch-all" disCr.i ct for lands neither urban, rural, or acnserva*_ion. Of the 1,932,929 acres of designated agricultural., it is estimated that Less than h.~1f of LY:e land can actually be used for agriculture. In 1997, there were 297,107 acres used for coops. In 2002, only 211,120 acres were used for crops. This 80,987 -res -9ecrease in the amount of land used for crops likely reflects Hawaii's derreasinq dependence nn agricu]ture as a? industry. 9'her~ is a long established practice oP permitting residential communities on land ~aassi C!ed for agricultural use. Agricultural land has been and will continue t_o be used for residential purposes because it is relatively inexpensive, available and nn[_ suited for agricul f_u ral uses. There are many subdivisions throughout the St_a to comprised o` marginal lands, but in the agricultural district and zoned to include H B 1418 Page 2 of 4 :~es'.dential uses by the respective counties. This has lead to agricultural land values rising beyond their va]ue for agricultural purposes. The counties have his t~~rir~a l.ly allowed such developments to occur on agricultural lands, with rr~h!cros developing only recently. In exchange for zoning and other entitlements, counties have imposed on developers of projects exactions such as highways or other transportation improvements, shoreline or other Darks, beach access, and affordable housing. Within the recent pas', developers of residential projects on agricultural lands have expended millions of dollars in construction and development costs and have sold thousands of residential lots. in the case of the Hokulia project in >outh Kona, despite arguments by the deve:oper that it had vested rights to proceed with the development based upon its reliance on the county's actions, including the requisite zoning, subdivision perm_ts, and executed development agreements, and its substantial expenditures in -e1'_;3nce thereon, the circuit court of the third circuit ruled that the dwellings being constructed and planned for the project were not farm dwellings and not a permitted nse in the state agricultural district. The court prevented any Further con s-ractl on activ Lties and directed a reclassification of the project lands from .he agricultu ral to the urban district. The counties, people in business, finance, development, and the community at large are concerned that such decisions cause tremendous damage and a debilitating uncertainty to the entire State. This decision sets a precedent for litigation between and among developers, lenders, residential lot owners, construction companies, realtors, title insurers, counties, and the State; creates a chilling effect on investment within the State; and clouds the viability and lega li ry of past permitted agricultural residential subdivisions throughout the State. The State has suffered and will continue to suffer adverse economic effects because the i.ncerta inties caused by such decisions have threatened jobs, will likely resclt in higher c~~sts, and will discourage investment in Hawaii. Hawaii is highly dependent on outside investment and capital to ensure that its economic engine operates smoothly. Besides tourism, investment in real estate is a highly important compon ert to a healthy state economy. Uncertainty in the real estate market will deter investment and drive up Che cost of capital. With the uncertainty of deve.opment projects In Hawaii, secondary employment associated with such projects :s affected, and there is less demand for materials and supplies £rom 1oea1 businesses. Counties will be deprived of much needed property tax revenue that iaou _d help provide infrastructure and services necessary for a healthy community. The ]anger such uncertainty festers, the more likely and pronounced its negative affects on the State's economy. Einar.cial institutions believe that such decisions increases the risk associated ~~iith development in Hawaii. Mortgage lending makes home ownership possible. Lenders have made significant loans on land with residences in agricultural districts throughouC the State. Decisions like the Hokulia decision invalidate lenders' longs t_anding interp ret_ation of chapter 205, Hawaii Revised Statutes, and th r.ows into doubt the legality of other dwellings. Additionally, there is great u m:ertai r.ty about the reliability of permits and the requirement of admini sr rative axn.aiis'.ion that places the security of existing home loans at risk. Realtors and title insurers believe increased prices may be necessary to compensate for the increased risks associated with making representations, disclosures, and wa r,ant!as about the legality of land use entitlements for individual properties. Vot e:~Li ally, insurers face litigatio? over zoning entitlements previously issued jai tri respe ct_ to lands and homes in the ag.ri cultural district. The Hokulia decision HR 14l 8 Page 3 of 4 leaves realtors and brokers it doubt about the validity of permits and approvals previously issued for lots and homes in the agricultural district. All of these effects are ]ikely to reduce the volume of real estate transactions and further redu~:e the affordable housing supply. Developers, investors, and those seeking homes will need to carefully consider whether it is prudent to invest or undertake projects in circumstances where zoninq_ approvals and entitlements remain open to judicial challenge for many years, even despito valid development agreements. The legislature finds that this is an unacceptable situation. One of the key fact~~xs in adjusting to the changing socio-economic conditions is the restructuring -;f our land use system to distinguish between the best agricultural. land (with soil ~~lassified oy the land study bureau's detailed land classification as overall (master) productivity rating class A or B) and more marginal agricultural land (with soi classified by the land study bureau's detailed land classification as wexall (master) productivity rating class D or E). Accordingly, the purpose of this Act is to remove the uncertainty over pas t_ entitlement of certain subdivisions by reclassifying certain marginal agricu]tu ril lands in the agricultural district into the rural district, subj ect_ Y_o certain teems and conditions. S F~~'T roN c. (a) For purposes of this Act, the term "prof ect_" shall mean any -ieve!cpment: (1) Approved by a county; and (2) Where plats of subdivision: (A) Have been approved; (B) On or before the effective date of this Act; (C) Creating two hundred or more lots, averaging less than three acres in size; and (D) On land located in the agricultural district. l'o) rands within any project that satisfy the following criteria shall. be classified as lands in the rural district as described in section 205-2, upon receipt by the land use commission of a voluntary request for such reclassification from the developer of the lands identified in such request, without need for any proceedings before the land use commission: (1) The lands have soil. predominantly classified by the land study bureau's detailed land classification as overall (master) productivity rating of D or E; and (7) The lands are not in zone 1 or zone 2 on the lava flow h.aza rd zone maps prepared by the United States Geological Survey. ;c) Jpor. reclassification, challenges to the creation and development within the reclassified area of lots and associated infrastructure, and of single-family residences on such lots, as contemplated by county project approvals granted prior FIB 1418 Page 4 oY 4 Lc the effective da t_e of this Act, shall be barred. (d) On lands moved into the rural district pursuant to this provision, the county shall not authorize, and no private landowner shall create, any lots smaller in sf .e than the lots provided for in the project approvals granted by the county prr,cr to the effective date of this Act. SECT" ON 3. This Act shall take effect upon its approval. TNTRODOCED DY: ~A~~.~`•N~4. Harry Kim 1-" ~,~j' ~ Dixie Kaetsu N/nyor ~ Mnnngir~q Director • ~ t r. alt Ol~N~,~' 7 7~ 7 `x J T Peter L Hendricks COUNTY OFi HA VV lT Depury ,M11nnrtgin~; Dire~ror 25 Aupum Street, Room 215. Hilo, Hawaii 96 720-42 52 (808) 9161-82111 Fax (808) 961 fi553 KONA- 75-5706 Kuaki nl Highway, suite 103 Kailua-Kona, HawaPi 96740 (808)329-5236 Fax (808)326-5663 February 4, 2005 Chair Ezra Kanoho Committee on Water, Land and Ocean Resources 415 South Beretania Street Honolulu, HI 96813 Chair Robert Herkes Committee on Economic Development and Business Concerns 415 South Beretania Street Honolulu, HI 96813 Dear Chairs Kanoho and Herkes and Committee Members: It is with very mixed feelings that I submit testimony in support of H61418. Feelings are mixed because of my very strong belief in and support of the judicial process in this state and country. Although the preference may be to allow the Supreme Court to take up the Hokufi'a case before it and trust that when the facts are reviewed, the Court's decision will show that the County of Hawaii acted in accordance with all applicable laws and procedures, this letter supports the passage of H61418 for reasons discussed below. In drafting this testimony, many thoughts pass through one's mind in deciding not only what position to take but also and perhaps more important the reasons for the position. This is not just an issue of a subdivision, but issues of the role of government and what it represents. It is known that regardless of what position is taken on HB1418, there will be questions of the right or wrong of that position. This testimony will focus on a position based on a true belief of the legal responsibility of the county government of Hawaii to attest iri all forums to the belief that the actions taken by the County in this process were legal and correct. In the 1993-1998 period, the Hokuli'a project received all land use approvals then required by the County of Hawaii. The Hawaii County Council passed six separate ordinances authorizing the various phases of the project, and the Hawaii County Planning Commission passed at least seven separate permits for it. Public notice and the opportunity for public participation occurred at each Howoii Coun[~~ ~s m~ Equnl OpporhmCry Provider mid EnrPlever Chair Ezra Kanoho Chair Robert Herkes Page 2 February 4, 2005 step. The County of Hawaii entered into a Development Agreement-a binding contract-with the developer that these approvals would remain in effect, and the developer agreed to provide various public benefits, including afive-mile highway. Both the County Planning Director at that time, and the Executive Director of the Land Use Commission at that time testified in the Kelly v. 1250 Oceanside Partners trial in Third Circuit Court that the project did not have to go to the LUC for further approvals. These were public statements. Relying on these commitments from the county government of Hawaii, prior to the filing of the Kelly v. 1250 Oceanside Partners lawsuit in 2000, the developer spent about $45 million on construction and sold more than 100 lots to individuals who also relied totally on the legality of that subdivision. Legal claims against this project were not filed until late 2000. It is this that is most bothersome about the whole issue. The time of filing of the lawsuit in 2000 and the ruling in September 2003 in the Third Circuit Court that stopped Hokuli'a from further development both came well after County government approval was given and resources expended by the developer in good faith reliance on government's commitments. In the support of this bill before you, the following is presented. The Third Circuit Court injunction in essence states that the project should have gone through a Land Use Commission process of approval or redistricting to urban. The county government of Hawaii, in trying to follow the judicial process, did join in trying to have the Supreme Court expedite the case so as not to leave this in limbo for potentially years and compound unfairness to the developer. That attempt was not successful. HB1418 is a means of not overruling the Third Circuit Court decision but would allow the developer to fulfill the Court's requirement of removing the land from the agriculture class. The most decisive reason to support this was based on legal guidance that the legislative involvement does not overrule the Third Circuit Court decision but provides an avenue for the developer to fulfill the requirement of the Third Circuit Court. On that basis, this support is given for HB1418. The present County administration was not involved in the original land use decisions, but the zoning, Development Agreement, other approvals, and the subsequent investment by the developer in reliance on these, create commitments we must honor. Chair Ezra Kanoho Chair Robert Herkes Page 3 February 4, 2005 While this bill is supported, the County Planning Director and Corporation Counsel have recommended certain technical changes to the authors of this bill to clarify certain provisions. It is our request that these technical items be incorporated into future drafts of H61418. Thank you for your consideration of my testimony. AI a, V ~ Harry Ki MAYOR "+~,y Phone: (808) 961-8263 BOB JACOBSON - t~~. Pax: (808) 961-8912 Vice-C/rnir E-Mail: Jacobs@hgea.org .y_.~ HAWAII COUNTY COUNCIL Coan~~ of Haimai'i flawui'C CounR~ Bulldinq 25.1 uptini Slree/, Sane 209 Hilo. Hnroai `i 96720 Friday, February 04, 2005 Topic: I oppose Bill 1418 Dear Representatives Please deny any further hearing of HB 1418 and hold this bill. The people of my island don'[ want this bill. My constihtents and I feel that Chis bill will have terribly negative consequences if enacted. It is a classic example of the law actually working to protect the public interests. Those developers that sough[ to pervert our laws were stymied by citizen and judicial oversight. Now these lawbreakers seek to change the law to avoid the consequences of their illegal behavior. This is [he same as a child molester trying to change the laws after being convicted of their heinous crime so they can continue [o live in the same house as the 12 year old that they have been raping and continue their rape of the child without interference. In fact this crime has been ongoing. To reward these violators with a law to enable them ro continue their rape is against all moral and ethical rules. Powerful statewide interests led by developer Lyle Anderson and his 1250 Oceanside Partners Development Corp are leading the cry that state land use law is too restrictive and that oversight by the LUC is duplicative and unnecessary. In introducing HB1418 to the press, Representative Bob Herkes, (Kona/Kau) mirrored [he company line when he was quoted as saying that the Hokulia ruling has sent shock waves through [he industry and "has dried up investment capital in this state." Nothing could be turther from the truth. The development boom is unprecedented and the state coffers full of tax money. HB 1418 proposes to redesignate certain residential subdivisions in the land use agricultural district into the rural district, subject to certain criteria. That certain, ruled illegal, residential subdivision called Hokulia happens to meet all the criteria. HB 1418 specifically legitimizes an illegal use of agricultural land. The slick land use professionals would like to tell you that the Hokulia ruling has put a pall on development investment. Our obviously booming construction sector seems to point otherwise. The bills language claims that Hokulia got a bum deal from Judge Ibarra and the Third Circuit Court and that the uncertainty in the development community is causing Hawaii's economy immensely. Let's be clear. Rather than muddy the water the Hokulia decision was clearly a proper application of the law and cleared the uncertainty that years of illegal use of agricultural land had developed. The Hokulia ruling is the clearest example of the application of Chapter 205 that we have Coday and farmers all over Hawaii are thankful for it. Farmers all over Hawaii are facing the same problem as we in Kona do and I am sure you will hear from them. Farmers want to see Chapter 205 and the role of the land use Commission strengthened. Please deny any further hearing of HB 1418 and hold this bill. Sincerely, ^+a? w Bob Jacobson District 6 (7PPer Puna, Xa `u, and South Konn Hawni'i Coanty /s .4n Equal Opportunity Provider And Employer