HomeMy WebLinkAboutCOM 0211.019 2004-2006 .._n~-..~
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LAND USE RESEARCH
FOUNDATION OF HAWAII
you Bishop Street, Ste. tgz8
i Honolulu, Ftawaii g68t3 _ ,
PhoneSV-47t7 _
Fax 536-ot3z - ~
May 17, 2005 ~ -
The Honorable Pete Hoffmann and K. Angel Pilago, Co-Chairs, and Members
j Committee on Planning
Hawaii County Council
25 Aupuni Street _
Hilo, Hawaii 96720 BY FACSIMILE: (8081961-8912 -
Dear Co-Chairs Hoffmann and Pilago, and Members:
Re: BiII No. 80 Relating to Subdivision of Land
' I am Dean Uchida, Executive Director of the Land Use Research Foundation of Hawaii (LURE), testifying
in strong opposition to Bil] No. 80, Relating to Subdivision of Land. This bill amends HCC § 23-23 to
prohibit any subdivision of agricultural land from including (1) restrictive covenants against agricultural
practices, (2) resort-like features; (3) an inadequate supply of water for agriculture; (4) a golf course wtth
residential lots, (5) gated or limited (guarded) entry; or (6) any dwelling greater than 3,500 squaze feet.
Curzently, HRS § 205-45(4) and HRS § 205-2(d) allow golf courses, farm dwellings m suppon of
agricultural activities on the property, and open area recreational facilities in the Agricultural District on
j lands classified as C, D, F. or U under the Land Study Bureau system. Farm dwellings are also allowed ~.n
A and B lands. Private restrictions on agricultural uses and activities are already disallowed under I IRS
§ 20513.6 [Act 5, 2003 Special Session], except where taken to protect agricultural leases [Act 170, 2004
Session].
It is unclear what specific problem Bill 80 is intended to address. ]f the intent of the bill is to further
define the allowable uses in the agricultural, family agricultural, or intensive agricultural zones, one
approach may be to consider moving some of the uses curzentty allowed in the State Agricultural Dtstrict
j mto the County zones which implement the State Kural District. This Session, the Iegislature passed
House Bill No. 109 HD] SD2 CDt, which envisions an expansion of the Rural District to accommodate
golf courses and other "quasi-urban" type land uses.
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Because the intent of Rill 80 is not clear, it would behoove the Council to fully constder its "unintended
consequences." 'fhe concerns that it is really trying to address deserve consideration, but may have to hr
dealt with by entirely different means. We recommend that the County of Hawaii convene an advisory
group, as provided by House Bill 109, and submit appropriate proposals to the Legislature next ytar
Bill 80 is also arguably facially unconstitutional. "fhe prohibition against gated or limited entry ha: the
~ effect of requiring the dedication of aright-of--way or permanent easement giving the public access to and
across private roads which have not been deeded to the County for maintenance and assumption of
liability, As such, a "permanent physical occupation" of pnvate property will occur, in violation of the
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Comm. Na Z
Ref. To: ftesoarM
Rc;f. Dot, MAY 1
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The Honorable Pcte Hoffmann and K. Angel Pilago, Co-Chairs, and Members
Committee on Planning
~ May ] 7, 2005
Page 2
owner's fundamental right to exclude others. The United States Supreme Court has opined, in the context
of mandatory lateral shoreline access, that such a requirement would be an unconstitutional taking of
private property for public use without just compensation, in violation of the I•'ifth and h ourteenth
j Amendments of the United Stales Constitution. See Na[lan v. California Coastal Comm'n, 483 U. S. 825,
83]-32 (1987), citing Loretto v. TedeprompterManhattan CATV Corp., 458 U.S. 419, 433 (1979).
Addnionally, Rill 80 provides no showing that the ban on gated or limited entry "substantially advan~eti
legitimate state interests," .ree Agins v. Tiburon, 447 U.S. 255, 260 (1980), and accordingly the bill "utterly
Fails to further (and end advanced as the justification." This lack of "essential noxus" occurs because the
govemmen[ would be exercising its power to prohibit a development amenity within the pnvate
landowner's right to exclude others from the property. Instead, the landowner would be required to create
new public access where none existed before, and where the development did not per se create the need for
the access. As the Supreme Court observed, this is "an out-and-out plan of extortion"; if govemmern
"wants an easement tt must pay for it." See Nollan, 483 U.S. at 837, 842.
We cannot support legislation that would require private property owners to dedicate private roads for
public access without compensation. If that is the intent, the appropriate means to secure such public
access would be for the County to accept the roads by way of dedication, thereby relieving the owners of
the responsibility and expense of maintenance and the liability for public use of the improvements. We
therei--ore recommend that you hold Bill 80 in its present form.
Thank you for the opportunity to express our views on this matter.
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