HomeMy WebLinkAboutCOM 0762.007 2004-2006
Soriano, BJ
From: Aiello, Jeanette
Sent: Tuesday, April 18, 2006 8:19 AM
To: Soriano, BJ
Subject: FW: Action Alert: (MONDAY DEADLINE or Tuesday meeting) No legal recourse to subdivision
decisions?????
Importance: High
-----Original Message-----
From: Eoff, Karen On Behalf of Pilago, K. Angel
Sent: Tuesday, April 18, 2006 8:02 AM
To: Aiello, Jeanette
Subject: FW: Action Alert: (MONDAY DEADLINE or Tuesday meeting) No legal recourse to
subdivision decisions?????
Importance: High
-----Original Message-----
From: Kanani Aton [mailto:k-aton@hawaii.rr.com]
Sent: Monday, April 17, 2006 3:33 PM
To: Pilago, K. Angel
Subject: FW: Action Alert: (MONDAY DEADLINE or Tuesday meeting) No legal recourse to
subdivision decisions?????
Importance: High
Aloha,
I send testimony to Planning Committee Chairman, Councilman Angel Pilago,
On Tuesday, April 18th at 1:00 pm, the Hawaii County Council's Planning Committee will
convene in Hilo to decide whether or not the County planning director (appointed by the
mayor) should have the final say in whether a subdivision will be approved with no legal
recourse available to the public to dispute that approval.
I write to say:
1. There is no urgent need to amend the Subdivision Control Code.
2. The sweeping changes are too radical.
3. Native Hawaiian rights are not protected by this legislation.
4. The Subdivision Control Code should implement the Land Use Law to ensure adequate
public services are provided to residential developments.
I am asking for better land use planning and land use law enforcement,
environmental/cultural resource protection, and appropriate response of County officials
to the requests and needs of island residents.
I sent a copy of my testimony to Planning Director Chris Yuen, fax#961-8742.
Mahalo,
Kanani Aton
Na Lau Lama Coordinator
808 969 6864, office
808 935 5351, fax
PO Box 11245
Hilo, HI 96721
Na Lau Lama: A Statewide Collaborative To Improve Outcomes For Hawaiian Students
Comm. No. 6D
1 Ref. To: r
Ref. Date.
For added information:
In January, the Hawaii Supreme Court upheld Judge Ibarra's decision that the
informational requirements of the Subdivision Control Code are mandatory. The County has
been violating the plain language of the Code for three decades. The Supreme Court held
that Planning Director Yuen's interpretation of the law was "manifestly incorrect and
unreasonable."
As a result of the Supreme Court's decision, Planning Director Chris Yuen is seeking to
amend the Subdivision Control Code.
This legislation will make it far, far more difficult to stop all the proposed
subdivisions in Ka'u.
1. There is no urgent need to amend the Subdivision Control Code.
No previous approvals are jeopardized by the court's decision in Leslie v. Board of
Appeals. The county code bars challenges of subdivision approvals thirty days after
approval.
It is true that new applications need to be complete - a requirement that was ignored for
three decades. But that does not mean that there is any urgent need to pass new
legislation immediately.
2. The sweeping changes are too radical.
The proposed amendment to section 23-62(e) (Section 5 of the bill) as well as new language
("unless waived or deferred by the director") to
23-64 (Section 6 of the bill) and 23-66 (Section 7 of the bill) gives the planning
director complete and unfettered discretion to approve a subdivision application
regardless of how much information an applicant submits. (Note: the Planning Commission
recommended that this be modified, but I'm not sure what the new language is.)
Much of the information is important for community members to be able to review. The
information includes: the location, the approximate layout, the acreage of the
subdivision, the number of lots, access lines to State highways, the location of water
courses, existing and proposed easements, deed restrictions, a statement regarding the
water system to be installed, and provisions for sewage disposal, drainage and flood
control.
There is one - and only one item - that probably should not be included in the preliminary
plat (but is essential in the final): "improvements to be made by the developer and the
approximate time such improvements are to be completed."
But to suggest that none of the information needs to be submitted - and that the director
has sole discretion to decide what information is needed goes too far. Such a proposal
disempowers the community.
3. Native Hawaiian rights must be protected.
A specific provision should be added to the Subdivision Control Code to require that
applicants submit information regarding traditional and customary native Hawaiian
practices on the property and measures proposed to protect them.
Some will argue that such a provision would be burdensome. No doubt, such a requirement
would be a burden - just as it is a burden to ensure that drainage and vehicular access is
provided. Society has determined that in order to maintain our quality of life, developers
who proposed to subdivide land have obligations to their future buyers - and to us.
Protecting traditional and customary practices is no more of a burden than providing
necessary infrastructure.
Moreover, the law already requires this. By putting the requirement plainly into the
Subdivision Control Code now, the County avoids future litigation. Consider:
Article XII § 7 of the Hawaii Constitution "places an affirmative duty on the State and
2
its agencies to preserve and protect traditional and customary native Hawaiian rights and
confers upon the State and its agencies the `power to protect these rights and to prevent
any interference with the exercise of these rights.'" Ka Pa'akai, 94 Hawaii at 45, 7 P.3d
1082 .
[T]he state is obligated to protect customary and traditional rights to the extent
feasible under the Hawaii Constitution and relevant statutes. PASH, 79 Hawaii at 450 n.
43, 903 P.2d at 1271 n.43 (emphasis added). As such, state agencies such as the LUC may
not act without independently considering the effect of their actions on Hawaiian
traditions and practices.
Id. at 46, 7 P.3d at 1083. This obligation is further re-enforced by HRS § 205A- 4(a)
which requires that the Planning Director give full consideration of cultural and historic
values when implementing the objectives and policies of the coastal zone management
program. See also, HRS 205A-5(b) ("all agencies shall enforce the objectives and
policies of this chapter") and 205A-2(b)(2) ("protect . . . those. . .
resources . . . that are significant in Hawaiian . . , culture").
In order to protect these rights, at a minimum, agencies are required
to: (1) identify the extent to which these rights are exercised; (2) determine the extent
to which these rights will be affected; and (3) determine the feasibility of protecting
these rights. Ka Pa-akai, 94 Hawaii 31, 7 P.3d 1068. "Indeed the promise of preserving
and protecting customary and traditional rights would be illusory absent findings on the
extent of their exercise, their impairment, and the feasibility of their protection." Id.
at 50, 7 P.3d 1087.
The planning director argues there is no duty for the government to investigate and
protect native Hawaiian rights when approving the subdivision of property for development
because the need to investigate and protect native Hawaiian rights only arises when an
agency is acting in a discretionary fashion. The PASH and Ka Pa'akai decisions, as well as
the constitutional mandate, are broad, however. There is no basis for narrowing their
application to only those occasions when government is acting in a discretionary manner.
Moreover, the Subdivision Control Code vests the Planning Director with significant
discretionary authority in decisionmaking: HCC § 23-7 ("may require necessary improvements
to further the public welfare and safety"); HCC § 23-13 ("may make exceptions to this
chapter"); HCC § 23-26 ("Outstanding natural or cultural features . . . shall be preserved
as provided by the director"); HOC § 23-30 ("Streets or parkways parallel to water courses
may be required"); HCC § 23-31 ("may require creation of a pedestrian way"); HCC § 23-32
("The lot size, width, shape, and orientation, and the minimum building setback lines
shall be appropriate for the location of the subdivision, the type of development and uses
contemplated and in conformance with the provisions of chapter 25, Zoning Code"); HCC §
23-34 ("may indicate the side or sides of any lot from which driveway access shall be
permitted or prohibited"); HCC § 23-36 ("A planting screen easement . . may be required");
HCC § 23-38 ("may require that the blocks shall be of such size and shape"); HCC § 23-51
("may require marginal access streets, reverse frontage lots with suitable depth, screen
planting. . HCC § 23-55 ("If in the opinion of the director"); HCC § 23-64 ("When
required by the director"). Subdivision approvals are discretionary decisions.
If no effort is made to investigate and protect native Hawaiian practices on land proposed
for agricultural subdivisions outside of the SMA, traditional and cultural practices would
be unprotected on approximately forty percent of the land on the Big Island.
4. The Subdivision Control Code should implement the Land Use Law to ensure adequate
public services are provided to residential developments.
In order to ensure that development occurs in areas where government services (fire,
police, schools etc.) are already provided, the State Land Use Law prohibits residential
development in agricultural areas.
Proposals to develop in the agricultural district (over 15 acres) are supposed to go to
the Land Use Commission where the project's impacts to state highways, native Hawaiian
rights, natural resources, and other government services can be evaluated in an open
forum. This process is subverted, however, when developers are allowed to subdivide land
designated as "agriculture" for residential purposes.
To ensure that taxpayers do not wind up subsidizing developers (by providing new
government services to scattered development), it is essential that no subdivision of
agricultural land be approved unless the application includes a farm plan to demonstrate
that the subdivision is a genuine agricultural subdivision. If not, the proposal should go
to the LUC for reclassification and the County Council for re-zoning. Public oversight by
3
the County Council can ensure that unfettered administrative discretion does not wind up
costing taxpayers money.
4