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HomeMy WebLinkAboutCOM 0998.002 2006-2008 CARLSMITH BALL LLP A LIMITED LIABILITY LAW PARTNERSHIP 121 WALINUENUE AVENUE P.O. Box 686 HILO, HAWAII 96721-0686 TELEPHONE 808.935.6644 FAx808.935.7975 W W W.CARLSMITH.COM SLIMC.CARLSMITH.COM OUR REFERENCE NO.: 058825-1 N February 27, 2008 co ^_n T ZC m rA N` Pete Hoffmann, Chairman VIA EMAIL AND U.S. MAC' pp Hawaii County Council PHOFFMANN@CO.HAWAII.'HI.US Angel Pilago, Chairman VIA EMAIL AND U.S. MAIL qp Committee on Planning KAPILAGO@CO.HAWAL H11 ti 25 Aupuni Street, Suite 209 s Hilo, Hawaii 96720 Re: Communication 998, Bill 237 REZ 07-000067/REZ 866: (1) Planning Director Initiated Change of Zone for 37.88 Acres of Land From Single-Family Residential 15,000-Square Foot RS-15) to a Residential and Agricultural 5-acre (RA-5a) District; and (2) Repeal of Ordinance No. 97-102, Which Rezoned 37.88 Acres of Land From an Agricultural 5-acre (A-5a) to a Single-Family Residential 15.000-Square Foot (RS-15) District Dear Chairman Hoffmann, Chairman Pilago and Members of the Hawaii County Council: We represent Kohala LLC ("Kohala"), the owner of approximately 37.88 acres of land located at Tax Map Key (3) 5-9-001: 008 (the "Subject Property"). Very soon the Hawaii County Council will be presented with the Planning Commission's unfavorable recommendation on the Planning Director's proposed repeal of Ord. No. 97-102 and downzoning of the Subject Property. The Planning Director failed to get Planning Commission support for the proposed downzoning, so it will be sent to Council with an unfavorable recommendation. Kohala urges the Council to vote against the Planning Director's proposed downzoning, which has the ignominious distinction of being the only downzoning pursued by the Director in the face of vigorous landowner opposition. Not only would the enactment of the proposed downzoning violate Kohala's rights of substantive due process and equal protection under the laws, Council consideration of these Director-initiated zoning amendments is premature. The Planning Director's proposed change of zone and repeal of Ord. No. 97-102 are among the five zoning and Special Management Area related amendments that have been before the Planning Commission since July 2007, three of 0061tnc W q 9 2?• 2- Ref To: Ref, Date FEB 9. R 7= Pete Hoffman, Chairman Hawaii County Council Angel, Pilago, Chairman Committee on Planning February 27 2008 Page 2 which are still with the Commission. The development parameters for the Subject Property are dictated by both Ord. No. 97-102 and SMA Permit No. 379. Because two-thirds of the proposed amendments related to the Subject Property are still with the Commission, any final decision by the Council at this time would necessarily be made out of context and in a vacuum. It is Kohala's wish that the Council defer action on the proposed downzoning so that the entire matter (the three zoning amendments and the two SMA amendments) can be thoroughly and comprehensively considered by the Commission, and then forwarded to the Council for an informed final action. Premature action by the Council in favor of the Planning Director's proposed amendments will result in an uncompensated taking of Kohala's property rights. Ord. 97-102, effective July 14, 1997, rezoned the Subject Property to RS-15. SMA Permit No. 379 was approved by the Commission on August 8, 1997, and made effective as of July 14, 1997. Both SMA Permit No. 379 and Ord. 97-102 included a condition requiring Final Subdivision Approval to be obtained within five years. For a variety of business-related reasons Kohala has not yet obtained Final Subdivision Approval. Without any warning, the Planning Director, by letter dated May 31, 2007, notified Kohala that he intended to downzone the Subject Property and revoke SMA Permit No. 379. Kohala has been assiduously defending its property rights since that time. This is the first and only time the Planning Director sought to downzone property against a landowner's wishes. In response to a Subpoena Duces Tecum to the Planning Department, Kohala reviewed files related to other downzoning actions taken by the Planning Director from December 1, 2000 to present. During that time period there were five Planning Director-initiated downzonings, four of which had landowner consent; Kohala is the fifth. This proposed downzoning is an arbitrary and unreasonable action that, if successful, will constitute a violation of equal protection and substantive due process under the U.S. and Hawaii Constitutions. Deprivation of such federally protected rights by actions under the color of state law may expose the County, the Director and members of the Council to liability under 42 U.S.C. § 1983, and therefore claims for damages, including punitive damages, just compensation and attorneys' fees. See Laki Kaahumanu v. County of Maui, 315 F.3d 1215 (9th Cir. 2003);1 see also Crown Point Development, Inc., v. City of Sun Valley, 506 F.3d 851 (9th Cir. 2007) (upholding developer's right to bring action against City Council under 42 U.S.C. § 1983 for substantive due process violation based on denial of developer's subdivision application). It is unclear why Kohala is being singled out and treated differently from other landowners in the County of Hawaii. The irregularity of this sudden and unreasonable ' While County legislators are immune from liability for actions taken in the sphere of legitimate legislative activity, "not all governmental acts by a local legislature [ 1 are necessarily legislative in nature." Laki Kaahumanu, 315 F.3d at 1219 (citations omitted). For instance, legislative immunity is not available for actions involving ad hoc decision making, or that apply to a few individuals rather than the public at large. Id. at 1220 (holding that despite the formally legislative character of the denial of a condition use permit, Maui County Council members were not entitled to legislative immunity from 42 USC § 1983 claim). Pete Hoffman, Chairman Hawaii County Council Angel, Pilago, Chairman Committee on Planning February 27 2008 Page 3 enforcement of the time condition for Final Subdivision Approval is demonstrated by the fact that the Planning Director allowed Kohala's "delinquency" to go unchecked for five years before retaliating with the proposed downzoning. Condition C of Ord. 97-102 required Final Subdivision Approval to be obtained within five years, i.e., by July 14, 2002. However, for the five years following this "deadline" the Planning Director was content to leave the zoning in place, consistent with the Planning Department's custom and policy toward zoning ordinance time limitations. Suddenly, in May 2007 Kohala drew the short straw, possibly as a result of our telephone contact with the Planning Department in preparation for submittal of Kohala's annual report. Since that time Kohala has been the victim of an unreasonable and singular attack. Kohala's repeated attempts to negotiate a workable solution have been rebuffed, and the entire matter has been fraught with procedural irregularities, such as inadequate public notice, untimely notice from the Planning Director to Kohala and arbitrary scheduling of Planning Commission hearings. These issues have been documented elsewhere and Kohala can provide the Council copies if desired.2 The Planning Director supports his argument in favor of the downzoning by pointing to the General Plan. However, Ord. 97-102 is consistent with the General Plan and the Planning Director does not have the authority to re-write the General Plan to further his goal of downzoning the Subject Property. The General Plan is adopted by ordinance passed by the Council. See County Charter, § 3-15. Once adopted, the General Plan has the force and effect of law. Gatri v. Blane, 88 Hawaii 108, 114 (1998). Therefore the Planning Director's attempt to downzone the Subject Property based on a false interpretation of the General Plan is ultra vires and sufficiently arbitrary to amount to a violation of substantive due process. Actions taken without legal authority violate substantive due process. See Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778 (2nd. 2007) (holding plaintiffs entitled to bring a substantive due process claim under 42 U.S.C. § 1983 because Town Board action was not specifically authorized under its zoning code). Ord. 97-102 was consistent with the 1989 General Plan. In 2005 the General Plan was amended, but there were no changes relevant to the Subject Property, thus Ord. 97-102 remains consistent with the General Plan. The Planning Director argues that the goals and policies of the Natural Beauty element of the General Plan support the downzoning. What he fails to acknowledge is the General Plan's Natural Beauty goals and policies are the same today as they were at the enactment of Ord. 97-102. In addition, the LUPAG designations for the Subject Property have not changed, despite the 2005 General Plan amendment that changed the LUPAG designation on adjacent property. In other words, despite the comprehensive legislative process that resulted in the current General Plan, there have been no changes relative to the z See July 20, 1007, Letter to Planning Commission; December 7, 2007 Letter to Planning Commission; January 9, 2008 Memorandum in Opposition to Planning Director Initiated Change of Zone, Repeal of Ordinance No. 97-102 and Revocation of SMA Permit No. 379 and In Support of Applicant Requested Amendment to Condition C of Ordinance No. 97-102 and Condition 4 of SMA Permit No. 79; February 1, 2009 Letter to Hawaii County Clerk. Pete Hoffman, Chairman Hawaii County Council Angel, Pilago, Chairman Committee on Planning February 27 2008 Page 4 Subject Property. The Planning Director's attempt to downzone the Subject Property based on his own interpretation of the General Plan amounts to the promulgation of legislation without due process. The Planning Director also argues that the downzoning is supported by Senate Concurrent Resolutions No. 179 and 146. These Resolutions do not provide legal justification for the proposed downzoning. To find otherwise is to permit the Planning Director to create, and the Council to enact, laws outside of the legislative process. First of all, Resolutions are not "law" they are merely policy statements that cannot override validly enacted laws, such as Ord. 97-102 and the General Plan. Second of all, S.C.R. No. 179 was passed in 1988, nine years before Ord. 97-102 was enacted, and therefore provides no basis for the downzoning. Finally, S.C.R. No. 146 was passed in 2001, four years before the most recent General Plan amendment. Therefore, any issues of concern in S.C.R. No. 146 with respect to the Subject Property would have found expression in the 2005 General Plan. As previously discussed, Ord. 97-102 was, and remains, consistent with the General Plan and neither Resolution can be used to support the proposed downzoning. For the reasons stated above, Kohala believes that the County Council cannot consider the Planning Director-initiated zoning amendments at this time. Kohala is strenuously opposed to the proposed downzoning and welcomes the opportunity to brief the County Council more thoroughly on the legal issues at stake. However, because the proposed downzoning is tied to the three matters still under Planning Commission consideration, Kohala requests that the Council refuse to hear the two downzoning matters now, so that they may be returned to the Planning Commission where all five matters can be given full consideration before being presented to the County Council for action. Kohala also wishes to inform the County Council that, as required under Hawaii County Charter Section 13-18, it has provided notice to the County Clerk of the substantial damages Kohala may claim should the proposed downzoning and/or SMA revocation take place. Very truly yours, STEVE S.C. LIM JAB cc: Lincoln Ashida, Esq. (via email) Amy Self, Esq. (via email) Client Jennifer A. Benck, Esq.