HomeMy WebLinkAboutCOM 0032.093 2006-2008 Page 1 of 2
Murashige, Laura
From: Charles Flaherty [oneheart@aloha.net]
Sent: Friday, October 12, 2007 10:42 PM
To: counciltestimony@co.hawaii.hi.us
r,
Cc: Ford, Brenda; Hoffmann, Pete; Ikeda, Donald; Jacobson, Bob; Higa, Stacy; Naeole, Emily; Pilago,
K. Angel; Yagong, Dominic; Yoshimoto, J
Subject: Further testimony on Bill 167
Aloha mai members of the County Council,
I have read through Kepo'o v. Watson, 87 Haw. 91 (http://wwwstate.hi.us/jud/23702,htm) and do not
agree with Mr. Yuen's analysis (see below) that this Supreme Court decision prevents the county from
regulating commercial and industrial leases/uses of DHHL properties. Actually, it seems that this case
supports such county regulation.
The MOU between the County and DHHL is legally non-binding. The county administration is using
administrative legal opinions, rather than actual legal precedent to azgue that the County cannot regulate
commercial and industrial leases of DHHL property.
I sent testimony to you that stated "Native Hawaiian Legal Corporation has filed a lawsuit to challenge the state's
failure to adequately fund the Hawaiian Homes Program, as it pledged to do as a condition of statehood. Instead,
the Hawaiian Homes Commission is embarking on a program to commercially lease its trust lands to raise
revenue, in contravention of the specific constitutional provisions under Art. XII, sec. 1 requiring the Legislature
to provide "sufficient sums" to the DHHL for all of its operations."
While I'm not an attorney, I would still argue the following using Kepo'o v Watson, Sections X-XII:
Historically, zoning has been connected to the common laws of nuisance and trespass so that one
property owner did not use his land to harm others. Zoning better identifies a private property owner's
right to defend against nuisance, and thereby promotes the general health, safety and welfaze of the
public. Therefore, zoning is a police power.
Micah Kane, Director of DHHL, former Director of the state Republican Party, and former government liaison for
the Building Industry Association, is arguing that DHHL needs commercial leases to fund development of
residential leases/homes. This azgument ignores the fact that the state constitution requires the legislature to fund
development of homes. Therefore, funding by commerciaUindustrial leases is only incidental and not significant
to the constitutional mandate that requires funding by the legislature. Certainly, this issue will be further clarified
by the NHLC lawsuit.
In Kepo'o v_. Watson, the state Supreme Court affirmed that "police power regulations apply to Hawaiian
home lands, and executive officials may enforce them, as long as these regulations do not significantly
affect the land."
Therefore, I would argue that 1) DHHL is subject to county zoning, except for DHHL residential and
agricultural leases, and 2) Council member Pilago's amendment is constitutional, especially if it were
applied to all property within the county.
Mahalo,
Charles Flaherty
Comm. No. 3 2 • ~~w3~
1
Ref. To: J~.:r,--~_ i~ 7 [UUf
Rif. Date 'UST
10/15/2007
Page 2 of 2
-----Original Message-----
From: cyuen [mailto:chris_yuen@co.hawaii.hi.us]
Sent: Sunday, April 29, 2007 1:36 PM
To: 'Charles Flaherty'
Cc: Kaetsu, Dixie; Ashida, Lincoln; Self, Amy
Subject: RE: DHHL Memorandum of Understanding, 2nd request
Chuck:
We agreed to the MOU because we believe that the MOU conforms to the existing law with respect to the
county's land use authority over DHHL property. The question whether the county's General Plan and
zoning regulations can control the uses of DHHL property has been the subject of a number of state
attorney general and corporation counsel opinions, and there are some areas where arguments can be
made on both sides of the issue, particularly with respect to DHHL commercial and industrial leases. (It is
fully agreed that county zoning cannot override the Hawaiian Homes Commission's decisions with
respect to residential and agricultural leases.) The law could be made certain only by a state supreme
court decision directly addressing the issue. The state supreme court did indicate, however, in Keoo'o v.
Watson, 87 Haw. 91, that the Hawaiian Homes Commission, and not land use regulations such as county
zoning, would control the uses on DHHL property. While this is not necessarily the final decision
(because the case itself concerned the EIS law and not zoning) it is the strongest word from the supreme
court on this issue and was a primary basis for our analysis that the MOU is consistent with existing law.
-----Original Message-----
From: Charles Flaherty [mailto:oneheart@aloha.net]
Sent: Sunday, April 29, 2007 12:20 PM
To: 'Chris Yuen'
Cc: Kaetsu, Dixie; Pilago, K. Angel; Higa, Stacy; Naeole, Emily; Ford, Brenda; Jacobson, Bob;
Yagong, Dominic; Ikeda, Donald; Yoshimoto, J; Hoffmann, Pete
Subject: DHHL Memorandum of Understanding, 2nd request
Second request.
-----Original Message-----
From: Charles Flaherty [mailto:oneheart@aloha.net]
Sent: Wednesday, April 04, 2007 1:23 PM
To: 'chris_yuen@co.hawaii.hi.us'; 'Kaetsu, Dixie'
Cc: 'KAPILAGO@co.hawaii.hi.us'; 'shiga@co.hawaii.hi.us'; 'enaeole@co.hawaii.hi.us';
'bford@co.hawaii.hi.us'; 'jjaco@co.hawaii.hi.us'; 'dyagong@co.hawaii.hi.us'; 'Donald Ikeda';
'jyoshimoto@co.hawaii.hi.us'; 'PHOFFMANN@co.hawaii.hi.us'
Subject: DHHL Memorandum of Understanding
Aloha Chris,
What is the legal basis for the memorandum of understanding which exempts DHHL from the
County General Plan and other county laws?
Mahalo,
Chuck
10/15/2007