HomeMy WebLinkAboutCOM 0032.079 2006-2008
OCT. 1.20)1 6:49PM 6'.CKEfTON V'0 '
BICKt;RTON ¦ LEE ¦ DANG ¦ SULLIVAPJ
A LIMITED LIABILITY LAW PAATNER91iTP
Fax Cover Sheet
r~_:
October 1, 2007 0
cs
To: Members of the Hawaii County No. of Pages: 6
Council
CoJDept: From: David A. Paulsv:' q.
Fax No.: 808-961-$912
Phone No.: 808-961-8225
Description of Docx~ment(s) Transmitted:
Ho`omalu Hawaii's Tesfimony Regarding Bill No. 167 for an Ordinance to Amend ~ grter 25;
Zoning Code, Hawaii County Code 1983 (2005 Edition, as Amended), Relating to R 1
Establishments,
Comments:
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con,in. Wa. 32 79
Ref. To: r?~IIgfML-+F+?d.l
Ref. Date, OGT 3 ?Oi17
OCT. 1.20)l 6:SOFM BICKERTON tvU
B1CK;ERTON LEE ¦ DANG ¦ SULLIVAN
A LIMITED LIAUILITY LAW PA.RTN ERSH[P
October 1, 2007 q
Via Facsimile (808-961-8912) and E- Mai[ (counciltestimony@co.hawaii:Jau?~sy~~ I ~
~ ~ r`
TO: Members of the Hawaii County Council
25 Aupuni Street '
Hilo, Hawaii 96720
SUBJECT: Ho`omalu Hawaii's Testimony Regarding Bill No. 167 for an Ordina to
Amend Chapter 25, Zoning Code, Hawaii County Code 1483 (200` 1 ;ion, a;:
Amended), Relating to Retail Establishments
DATE; OF MEETING: October 3, 2007
TIME OF MEETING: 12:30 P.M.
Dear Members of the IIawaii County Council:
Attached hereto is testimony that is jointly submitted by James J. Bickerton, Esq. an +avid
Paulson, Bsq.. Mr. Bickerton is a parhier and Mr. Paulson is an associate with the 1~ ~ rrn ,,I'
Bickerton Lee Dang & Sullivan (`BEDS"), BEDS is legal counsel to Ho`omalu 1•ia i; Fl
statev~ide grassroots coalifion that opposes the development of superstores in Haiti a o n su u
Hawaii has members who reside on all the major Hawaiian Islands, including many :,b~
who aside in the County of Hawaii. We are submitting the attached testimony on t 1 f c ~
Ho`omalu Hawaii. On June 28, 2007, BEDS submitted testimony to the Hawaii Co
Planning Commission relating to what is known as Bill No. 167 and also what was i wtin a ~til'
No. 165. Additionally, an September 17, 2007, BEDS subntted testimony to thi<, c n;il
relating to Bill No. 167.
We look forward to presenting our testimony in person at the meeting and will be a ible
answer any questions that the Council may have. Thank you for your time and attei n to :i.ls
testimony.
Very truly yours,
James J. Bickerton, Esq. David A. Paulson, Esq.
Enclosures
Topa Financial Canter, Port Stree[ Iewer • 745 Fort Street, Sui[e 80l • Honolulu, Hawri`i -;.3
P'tone: 806.599.3811 Fax: 808.533.967 Web: www.RSDS.e0a
OCT. 1.20)7 6:50PM EICKERTON 40
B[CICERTON ¦ LEE ¦ DANG ¦ SUL1.IV~N
n EY MITED LIAGILITY LAw PAAl'N ERSITYP
MEMOTtANDUM
TO: Members of the Hawaii County Council
FROM: Bickerton Lee Dang & Sullivan
RE: Ho`omalu Hawaii's Testimony Regazdirlg Bill No. 167 for an Ordinance a: ~,rr,<-:,..
Chapter 25, Zoning Code, Hawaii County Code 1983 (2005 Edition, as An : ndec'. i
Relating to Retail Establishments
DATE,: October 1, 2007
Summary of Testimony
We support Bill No. 167 for the following reasons:
(1) This County has authority tinder the constitutions of both the Unite;.: ~ ..s alli
the State of Hawaii to regulate activities that impact the health and welfare of commw ity lli:l
No. 167 is substantially similaz to ordinances adopted by other cities and counties ac r: ~s 111e
United States that have withstood rigorous constitutional challenges in United Sta~:es i :cleral
court and the state courts as a valid exercise of city/county authority to protect corvtll: ;liter he~JtL'•.
and welfare.
(2) Ordinances substantially similar to Bill No. 167 have successfully cu~tti~ed tYte
operation of"superstores" in other communities across the United States. This is ~°ca use tt:?
ordincnce is designed to restrict the business mode] that that is essential to the fungi c; , o z
"superstore" and which has been repeatedly shown to have substantial, deleterious. iI n? nets of
cotmunities. While there maybe similaz business models that would-be "superst nl : ne-ai ~ r.
may seek to create, Ho`amalu Hawaii i5 unaware of any existing "superstore" bus'.nrs . lncidrl
that does not require the combination of extraordinary total floor areas, [azge bnoa:r~ r rl;as, and
extraordinary large numbers of stockkeeping units (`°STCUs"). Thus, while additicvl 1 e:sulal :r~.
in the future may be warranted, Bill No. 167 effectively regulates the "superstore' b 1; :.css
model that is actually in use across the country.
(3) We contend that whether Bill No. 167, like other reasonable zoning r~z ulation.
that this Council has adapted or may in the future adopt, applies to Hawaiian hom: !aI rls i8
irrelevant. Simply stated, Bill No. 167 is a valid exercise of the County's regulatory ~a~er and
will extend to activities on all lands subject to its authority in this regard To the e:x:el t it is
considered relevant, and as discussed herein, we believe the law is clear that Hawaiia* hcm~
lands in Hawaii County would be subject to Bill No. 167.
1. Bill No. 167 is C'aref`ully Tailored to Protect the Community gad A Val l l ~'7 xe rcis a u `
the County's Power
Bill No. 167, for an ordinance to amend the Zoning Code to prohibit "superstores' is il l zoo ~g
districts (the "Proposed Ordinance"), has been carefully drafted and will effective?y mevent ~:ti~:
introduction of superstores in Hawaii County.
Tops Financial Center, Fori Street Tower • 7A5 Port $lrtrY, Suite 8~1 • Honolulu, Hawaii 9~ s:.3
Phone: 808.599.3811 Fax: 808.533.2467 Web: Yvww.BSDS.com
ACT. 1.2Q~~7 6:SOpM RiCKERTOV
Ho`omalu Hawaii's Testimony Regarding Bill No. 167
October 1, 2007
Page 2 of 4
First, the Proposed Ordinance would restrict an undesirable anclhtgh-impact use t^p: I `te
"superstore." This use t}~pe iswell-defined by the Proposed Ordinance, it addresser, ttn r
knowledge is the only "superstore" business model that has been implemented els~~Ral. ~a, aT
the use-type closely correlates to the multiple empirical studies that have identified the
substantial harm introduced by such "superstores." Specifically, empirical studies o :r
"superstores" have shown that, among other things, "superstores" (a) tend to cause
disproportionate trttffic impacts to the communities in which they are established, ar d (''.1
promnte the closure of other anchor tenant-type stores -leading to conditions ider-i.`:7: d. as
"urban decay." The Proposed Ordinance does not target Wal-Mart, Costeo, Target ur 5;:fe.h•a.
but rather prevents any company from developing large-scale, high-SKU, full gzocee-1•
superstores that have been shown to be detrimental to the health, safety and quality . i° e it '
comrrlunity.
Second, the use of three distinct attributes of what constitutes a "superstore" -total l: or aree,
total SKUs, and substantial grocery space -is effective because it addresses the eri~ii (i?
"superstore" business model. Furthermore, it has withstood aggressive constitutioru~l ;ciallen:=e
in both the United States federal courts and state courts and therefore can be adop :ec` 1 ~
Council with confidence.
The use of total floor azea as an attribute of a "superstore" is consistent with the ach s.:;ize of
"superstores" operated by a variety of companies on the mainland. These "superstore ~r~e as in
excess of 90,000 square feet, with most exceeding 200,000 square feet.
The use of SKUs as an attribute of a "superstore" is consistent with the actual nur,~~be.. cr' SI<l.!;;
of "superstores" - wlvcl3 typically cant' upwards of 35,000 5KUs. Importantly, inr,'.u z:on of ;lug.
attribute in the Proposed. Ordinance will serve to restrict superstores without similarl~• proltib tin<.;
lower-impact "warehouse club" stores such as Costeo Wholesale and Wal-Mart's "f;a s Ch: cl `
store<., large grocery stores, or large home intprovement-type warehouse stores. tyI i'ral
"superstore" carries upwards of 35,000 SKUs, while these other types of establislmet is cam
less titan 20,000 SKUs.
The use of floor area used for grocery as an attribute of a "superstore" is consistent `i flie
relationship of grocery to total product offerings of all existing "superstores." Thy terstc~~ e'"
business model appears to use ]ow-margin grocery items as a means of driving exCr: 1_nary
traffic and contributing to the serious congestion problems that are created.
PinaLy, ordinances similaz to the Proposed Ordinance have been upheld by state an +~.e:cai
courts upon constitutional challenge. See Wal-Mart Stores. Inc. v. Citv of Turlock. &
Ca1.App.4th 273 (2006), review denied lily 12, 2006; see also Wal-M Stores.u ;_Cit~,;lY'
Turlock, 483 F,Supp.2d 987 (E.A.Cal. 2006) (collectively, the "Turlock Cases") Tur.:~:~k
Cases demonstrate that the Proposed Ordinance is reasonably related to the public; k;h, saf : I;~
and welfaze and will therefore withstand constitutional challenge. Although it is :o- ivable Ilu:t
superstore retailers could devise a new or modified format to circumvent the Prol o ~ ;
Ordinance, the Council can pass any number of new ordinances that arc tailored t ~ v aut ..;:1,
BICKEATON LEE • DANG • SULLIVAN
n ?NIIFD tinlllltt tow ,naiN[R[NIP
Tupa F3aaacia] Center, Port Street 7bwer • 745 FDR Strctt. Suite RO7 ~ Honolulu, Hawaii 9fi8: i
Phone: 804.599.3811 Fax: 808.333.2467 Web: www.aSDS.cam
OC?. 1.20)1 6:5'PM BICKERTON 'l~~
Ho`ontalu Hawaii's Testimony Regarding Bill No. 167
October 1, 2007
Page ? of 4
formats that have similar negative impacts on the community. We submit that it is t c.i~,~?
constitutionally defensible approach to pass the Proposed Ordinance and to consid:-~ htiona.
legislation as warranted.
2. The Proposed Ordinapce and Commercial Development of Hawaiian hI, Lanc.:~
Opponents of the Proposed Ordinance have asserted that the Proposed Ordinance
ineffective because it cannot block the construction or operation of "superstores" cn rar,;iiar
home lands. We submit that this is incorrect for two reazons.
First; the Cotmty can only regulate those acfivities it has legal power to regulate. li
determined by a court of law that reasonable commercial zoning laws that have be ~a 1~7pt~d ~y
Hawaii County do not apply to commercial developments on Hawaiian home land. 3 tll e
Proposed Ordinance will simply have the same territorial effect of every other Ha« ounty
zoning law, This is not a. bad thing and it will substantially serve the interests of the rnmuni e~-
by protecting it lzom the deleterious impact of "superstores" on all lands in the Co.u ottie r t .ur,
Hawaiian home lauds.
Second, we submit that t1re County cam reasonably regulate commercial develonm~tn ~r.
Hawaiian home lands. This is true despite the oR-repeated legal conclusion that tl. e ;mt~ c; .r
impose no regulation on ~:ommercial developments on Hawaiian home lands. Thus, sut m:.:
that the Proposed Ordinance will most certainly apply to Hawaiian home lands with; he Coe rat}
and prevent companies from circumventing County regulation by steking favorable mere al
development arrangements on Hawauan home lands.
Under the Hawaiian Homes Commission Act (the "13HCA"), a tease ofHawaiian h, ~ Lardy to
a non-native Hawaiian entity for commercial purposes must be consistent with Cour- zoni a~
ordinances. Whereas Hawauan home laztds that are required foz leasing under H1IC. .~ceion
207(a) -that is, lands which are used for the purpose of enabling native Hawaiian; n ,~e and
work on their own land -are completely exempt from County zoning, Hawaiian hon Lindy [h;s!
are nor, required for ]easing under HHCA section 207(x) - such as lands to be leased ~ ioa
native Hawaiians for conHnercial purposes -may be disposed of "on the same tern:e rditic .
restrictions and uses applicable to the disposition of public lands in chapter 171, Hit i R~~vis'~~i
Statutes." HHCA § 204(x)(2).
Under Hawaii Revised Statutes section 171-41, leases of public lands for commerci es tcu,
be consistent with County zoning laws. Specifically, "[l]eases for commercial u ;1ai11 h ;
made only pursuant to a development plan which provides for careful placement c:'
complementary enterprisesconststentwtthcountyzoningrequirements[.]" HRS § 1 ~41;a1
(emphasis added). We submit that the only reasonable interpretation of this languag that m n-
native Hawaiian commercial developments must be done consistent with county zuu
requirements.
We think it is also important to note that our conclusion is not controversial. In fact; [Hl., h•~,
itself conceded that commercial developments on Hawaiian home lands are subjec~.? 'arrt~.
61CKERTON ¦ LEE ¦ DANG ¦ SULLIVAN
..,nnm,,.mnn xnw ,nn*xtumv
Tope P,nngclal Gen,er, Fnrr Srreer Tower • 745 Forr Strear. Suire SOi • Ilanolnlu, Hawaii 9E8I s
Phaae, 808.5993811 Faz; 808.533.246% Web: www,BSDS.rnm
OCT. 1.20)1 6:S1PM BICi(ERTON _
Ho`omalu Hawaii's Testimony Regarding Bill No. }67
October 1, 2007
Page <l of 4
zoning ordinances. In 2002, the County of Hawaii and the Department of Hawaii ur F croe L:: n Is
("AFiHL") entered into a Memorandum of Agreement ("MOA") regazding the applicr:icu o]
County zoning ordinances to Hawaiian home lands. The MOA provides that DH}iI, z l ay sel.:;; l
the zoning district that will apply to Hawaiian home lands; however, once DHHL h< 4: s'., n. ;
the zoning district, the 1vI0A provides that all County land use laws apply to such lsc::.
Specifically, "[a]ll normal land use controls will be applied to DHHL property acco; c l;.g to t : ei
zoning district selected by DHHL. Except as specifically provided in the Agreement, C?
~ 1IL 'rt
follow all normal land procedures, regulations, and standards applicable to the annul„ clrs?ri,;r.
MOA § IILD. (emphasis added). Additionally, the MOA provides that "[tJhe Couct., ,-i.'1
enforce land use codes and regulations on Hmvalian home lands in the same manna ~ r-'tl!
other landowners." Id. at § IILH. (emphasis added). Accordingly, if the Proposui U:: i in:ancr
were enacted and superstores were prohibited within all zoning districts in the Co~,m c D'a'-I'
could not select a zotrirtg; designation that would pemait the construction of a supe Est m : o
I-Iawaiian home lands.
It is unclear to us why any agent of the government would take the position that cotr_7 r:rci;~1
development on Hawaii~ul home lands is exempt from reasonable County zonine. 5 nl _ . a
position would seem to be inconsistent with Hawaii law and would permit DHHL tc ::;Ise ;t_s
lands for such things as construction of a 300 foot office tower in Kailua-Kona, a ~z it , ~:,urrl
processing plant in downtown Hilo, or raceway park next to an elementary school. ti7e• these
may seem unlikely, we submit that the law simply does not permit such activities if ::°n are r ~
permitted by reasonable county zoning regulations.
3. Conclusion
We are all worried about the problems that superstores create -supersized traffic cony estien,
supersized parking lots, supersized community disruption; disproportionate use ar,d
overburdening of water, sewer and other infrastructure, unique environmental degrade t on, t1
decimation of small business and alternative employment opportunities, and the resLl.t ~ I ? la rb ;
decay and deterioration of communities. Toning laws are in place to protect the h~ahl . saf e~:;
and welfare of the people, and to address all of these problems by enstuurg that devEl: t,ment;
appropriately situated and done consistent with existing plans and the best intcrests of t;•te
community, Superstores simply aze not an appropriate use in this unique and fragile i l aro
comtramity.
Municipalities throughout the United States have passed, or are in the process of passi , e,
superstore bans that are similar to the Proposed Ordinance. Fortunately, the Council is s the
opportunity to be proactive and prevent the development of superstores before the fi; s'
superstore is constructed and its deleterious effects aze felt.
61CKERTON ¦ LEE • DANC • StJL1.JVAN
n unrtio un,uur uw nrtvrunu
Topa Financial C¢ntcr, Furr 5[reet Toner • 7a5 Fors Scra¢[, Sol[a 801 ~ Ilonolulu, Hau~a7i 96r L
Phanr: a0a.599.3Rn A¢x: 808.533.2aa7 WeL~ www.AgnS~com