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Home My WebLink AboutCOM 0953.021 2004-2006 ORIOIINW- Testimony of Michael J. Matsukawa ? p 1 c r IN OPPOSITION TO Bill No. 305 (Draft 2) Chairman Higa and ro Members of the County Council: I oppose Bill No. 305 (Draft 2) for several reasons, most of which my clients, Victoria S. Abe and her sister, Patricia S. Toyama, and others have previously articulated to the Planning Commission and to this Council. THE MATERIAL FACTS The neighborhood in question is a long-established, compact neighborhood of individuals who share many common interests. If this Council rezones the parcels that lie in the middle of this neighborhood, such action will have the effect of stabbing the "heart of a community" and will lead to its death, never again to be replicated on the island. Homilies like "This is better than single-family lots with ohana" or "This will provide housing opportunities" or "The neighbors can rezone their lands as well" do not justify the destruction of a community - not after this Council declared in 2005 that in reviewing a Multiple Residential rezoning proposal, the Council will strive to "enhance the quality of life in our residential communities." THE APPLICABLE LAW I direct the Council to the following important points that underlie Victoria Abe and her sister's concerns. 1. In 2005, this Council adopted the revised General Plan as an ordinance having the full force of law. This followed efforts to enact the plan as a mere "guideline" or "hortatory wish list" that can be freely ignored in the decision- Comm. No. 151'20 Ref. To: Pres 7 u"-f. hate -Ul-" 2M making process.i To the contrary, to ensure that the General Plan ordinance is a true mandate (not merely a guideline), this Council added the following language to the Land Use Element in 2005 (at Page 144): "Rezoning is the primary method for changing the allowed uses of land. Rezoning must be consistent with the General Plan including the Land Use Pattern Allocation Guide Map. Other facts beside the map consistency must be taken into account during the rezoning process, which requires specific consideration of a number of factors to determine the suitability of the property for the proposed zone. These include proximity to roads, utilities, and public services, environmental factors such as drainage, slope, and soil types, and other public concerns." 2. In Leslie v. Board of Anneals, 109 Haw. 384 (2006), the Hawaii Supreme Court interpreted the word "shall" as it appears in the County of Hawaii subdivision ordinance to mean "shall," i.e., "must" (no discretion to disregard code requirements). 3. In 2005, this Council set forth specific factors that it "must" consider when it examines a Multiple Residential rezoning proposal (Page 14-42): Goals (c) [E]nhance the overall quality of life in our residential communities. added in 2005] Compare with Protect Ala Wai Skyline v. Land Use & Controls C'ee. 6 Haw. App. 540, 547 (1987) (parties agreed that then existing Honolulu General Plan has no force of law); GA DU v Blaine. 88 Haw. 108 (1998) (Kihei development plan ordinance has full force of law and SMA permit that is not consistent with development plan ordinance is void). See also Canyon Area Residents for the Environment v. Board of County Commis, P3d , 2006 WL 1171863 (Colo. App. 2006) (city master plan not "advisory" that need only be "considered" in approving planned unit development); Moore v. Maloney, 253 Ga. 504, 321 S.E.2d 335 (1984) (rezoning land to allow townhouses in established single-family residential neighborhood held invalid where record shows that council did not follow comprehensive development plan, but instead used other criteria like increase in tax base and desire for townhouse class of housing); Conifer Development. Inc. v. City of Syracuse, 473 N.Y. S.2d 662 (1984) (rezoning amendment "not in accordance with" a comprehensive plan is void). 2 Standards (a) [Multiple Residential) Areas shall be located in such a manner that traffic generated by high density development will not be required to travel through areas of lesser density an route to principal community facilities. (reaffirmed in 2005) 4. As part of the 2005 General Plan ordinance, this Council also adopted the following course of action for housing in South Hilo: * encourage housing for University students, faculty and staff * replace or rehabilitate housing units * encourage housing projects for low and moderate income, "gap ' and the elderly * develop State lands for all socio-economic levels 5. In October 2006, the County's consultant on "affordable housing" (David Paul Rosen & Associates) filed his economic analysis of the County's housing ordinance, Chapter 11 of the County Code with the Planning Department, noting that: * the least costly option to develop owner units is to build "10 percent of units at 80 percent of median income" (4-member household earning $47,900 per year) 2 * density bonuses (10%) and minimum building area incentives under Chapter 11, County Code should be extended to developers * County should select the income levels it wants to target 6. There is no evidence to substantiate (a) the need for the project, (b) how the project can and will satisfy the County's housing policy (owner or 2 In other words, the 20 percent formula currently set forth in Chapter I I of the County Code is not economically efficient. 3 rental) for South Hilo, (c) where affordable units will be constructed (on-site or within a 15-mile radius), (d) at what cost or (e) the intended target group. Nor is there evidence of the density bonus, minimum building area or other incentives that have been or will be offered to the developer (as well as the impacts such incentives will have on the neighborhood). 7. Although a zoning ordinance is generally treated as a legislative act (to which courts will defer), courts will still invalidate a zoning ordinance if it is "arbitrary." 8. A zoning ordinance is arbitrary if (a) it reflects "spot zoning," i.e., it does not involve "wide-spread community consideration" because it affects only a small number of owners and area and where a small area within a larger area is singled out and is specially zoned for a use classification different from and inconsistent with the classification of the surrounding area and not in accord with a comprehensive plan, Save Sunset Beach v. City & Count~of Honolulu; 102 Haw. 165 (2003), or (b) it does not "conform to and implement" the General Plan ordinance, Section 3-15(b) of the County Charter.3 9. In 2005, this Council adopted a specific "Plan Implementation" section in the General Plan ordinance calling for community development plans that this Council or the Planning Director may initiate. However, the absence of a development for South Hilo does not mean that this Council may ignore the specific provisions of the General Plan ordinance discussed above. 3 "No... zoning ordinance[] shall be initiated or adopted unless the same con orms to and implements the general plan." Section 3-15(b), County Charter. Unlike the Honolulu ordinance in Save Sunset Beach that established mere "guidelines" for country district zoning or the hortatory general plan in Ala Wai S , line that gave the council the authority to "resolve" the interpretation and priority of stated objectives and policies, the 2005 General Plan ordinance for the County of Hawaii is more than a "guideline" and does not give this Council the freedom to "pick and choose" certain parts of the General Plan ordinance while ignoring others. 4 CONCLUSION The neighbors have every right to protect and to preserve their "quality of life." The applicant and this Council are also obligated to ensure that the proposal will enhance that "quality of life." Since this Council declared that Multiple Residential areas should be established in places where traffic from the high-density aroiect will be diverted through an area of lesser density, this Council must determine how the proposal satisfies this standard. Further, since this Council established specific courses of action for housing in South Hilo, this Council must determine how the proposal advances those courses of action. Finally, since the proposal must "conform to" the General Plan ordinance, this Council must determine how the proposal conforms to the General Plan's goals, objectives and standards. In a representative democracy, this Council acts for Victoria S. Abe, her sister, Patricia S. Abe, and others in the neighborhood who oppose the proposal, not just the applicant, and owe the community an explanation why they should sacrifice their interests and desire to maintain their compact community of long- standing. What greater good will their sacrifice serve and what will they receive in return? RECOMMENDED ACTION This Council should deny the proposed rezoning request. 5