HomeMy WebLinkAboutCOM 0117.003 2008-2010
KENNETH G. GOODENOW tv o: N RODNEY OSHIRO
County Clerk ip0± Deputy County Clerk
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Mauling Address: j-"j- t
(Former County Building r •o:'N~'~ Business Address:
25 Aupuni Street 333 Kilauea Avenue, Second Floor
Hilo, Hawai'i 96720 Ben Franklin Building
County Of Hawai'l Hilo, I-lawai'i 96720
Office of the County Clerk
Telephone: (808) 961-8255 Facsimile: (808) 961-8912 °o
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To: J Yoshimoto, Chair
and Members of the Hawaii County Council
From: Kenneth Goodenow, County Clerk,
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Date: March 10, 2009
Re: Documents Made Public by the Council on February 19, 2009
At a meeting of the County Council held on February 19, 2009, the Council voted unanimously to
take public the following documents:
1) An e-mail dated January 22, 2009, sent by Corporation Counsel Lincoln S.T. Ashida to
Council members regarding Impact Fees and Fair Share;
2) An e-mail dated January 22, 2009, sent by Corporation Counsel Lincoln s. r. Ashida to
Council members and others regarding the e-mail listed as "I " above; and
3) An eight-page handout presented by Deputy Corporation Counsel Amy G. Self to
Council members during an executive session of the County Council held on February
4, 2009.
These three documents are attached to this communication, which will be processed and assigned an
appropriate communication number.
KG
Enclosures
Comm. No. + 3
Ref. To:
Ref. Date viAn.
Serving the Interests of the People of Our Island
Hawai'i County is an Equal Opportunity Provider and Employer
Page 1 of 3
Goodenow, Kenneth
From: Ashida, Lincoln
Sent: Thursday, January 22, 2009 9:05 AM
To: Yoshimoto, J; Hoffmann, Pete; Yagong, Dominic; Ikeda, Donald; Onishi, Dennis; Naeole, Emily;
Enriques, Guy; Greenwell, Kelly; Ford, Brenda
Cc: Rodillas, Martha; Self, Amy; Takase, Gerald; Garson, Kathy; Kamelamela, Joseph; Hookano, Levi;
Goodenow, Kenneth; Yamada, Glynis; Murashige, Laura
Subject: RE: Impact Fees and Fair Share
PRIVILEGED AND CONFIDENTIAL COMMUNICATION
ATTORNEY-CLIENT COMMUNICATION.
NOT A PUBLIC RECORD
Council Members,
Correction to the below, former County Clerk Casey Jarman disagreed with our position, not
the present Clerk Mr. Goodenow.
My apologies to Mr. Goodenow and the Council for this misstatement.
Lincoln
Lincoln S. T. Ashida
Corporation Counsel
County of Hawaii
From: Ashida, Lincoln
Sent: Thursday, January 22, 2009 7:48 AM
To: Yoshimoto, J; Hoffmann, Pete; Yagong, Dominic; Ikeda, Donald; Onishi, Dennis; Naeole, Emily; Enriques,
Guy; Greenwell, Kelly; Ford, Brenda
Cc: Rodillas, Martha; Self, Amy; Takase, Gerald; Garson, Kathy; Kamelamela, Joseph; Hookano, Levi; Goodenow,
Kenneth; Yamada, Glynis; Murashige, Laura
Subject: Impact Fees and Fair Share
PRIVILEGED AND CONFIDENTIAL COMMUNICATION
ATTORNEY-CLIENT COMMUNICATION
NOT A PUBLIC RECORD
Council Members,
There has been recent discussion and comment by some Council members at recent meetings
concerning the legality of the County's fair share program. It was suggested by some that
Third Circuit Court Judge Ronald Ibarra ordered the County's fair share program illegal. This
is not correct. Judge Ibarra ruled the County's fair share assessment provisions of the
Development Agreement (between the County and Oceanside) were illegal.
The following is the conclusion of law that some feel concluded the entire fair share program
2/20/2009
Page 2 of 3
was declared illegal:
Count 2: (Declaratory Judgment That Development Agreement is Illegal)
The condemnation and fair share assessment provisions of the Development
Agreement are declared illegal. Judgment is hereby ordered to be entered in
favor of C&J Coupe Family Limited Partnership and against County of Hawaii
and 1250 Oceanside Partners because County Resolution 266-06 illegally
delegated the County's power of condemnation through the Development
Agreement to a private party, 1250 Oceanside Partners.
You must read the entire order, including all findings of fact to understand the extent of the
above conclusion. Judge Ibarra in essence found the Development Agreement invalid for a
number of reasons, including the impermissible delegation of the condemnation power by the
County (authorized in good faith by a previous Council).
To read the above finding to conclude the Judge found the County's fair share assessment
illegal would be tantamount to reading the finding to also conclude the Judge found the
County's condemnation powers illegal, since the finding simply says, "The condemnation and
fair share assessment provisions of the Development Agreement are declared illegal." Clearly
this is not what the Court intended nor did.
Judge Ibarra could very well have ordered the County's fair share assessment (as applied to
any set of circumstances even beyond the present Development Agreement) to be invalid and
illegal, but he did not do so. This is why the language in the findings and order specifically
state "The condemnation and 'fair share' assessment provisions of the Development
Agreement are declared illegal." The Court could have legally found and concluded as. a
matter of law that "The County's 'fair share' assessments are illegal and violate HRS Section
46-141." Had the Court said that, no question the County's fair share assessment process
would be deemed invalid. But that is not the case.
Now, does that mean we don't need an impact fee ordinance? No, we are not saying that. In
fact, our Land Management Division of our office reports that although there is enabling
legislation promulgated by the State in HRS, the only county to adopt an impact fee ordinance
is the City and County of Honolulu, but even then it was limited to the District of Ewa. In fact, it
has been suggested that this ordinance was driven by developers who realized their payments
under the impact fee ordinance was less than what it would be under a fair share assessment.
Our Land Management Division understands the State Legislature needs to make
comprehensive changes to the enabling statute for impact fees to make it workable.
But in the absence of an impact fee ordinance, the fair share assessment is a mechanism that
ensures that the County obtain certain public benefits from developers through mutual
negotiation and agreement. To conclude generally that the County's fair share assessments
are invalid in all cases is not supported by Judge Ibarra's order, and further burdens our
County's resources in not having developers provide their "fair share." The bottom line is the
mutually beneficial fair share assessment benefits our County and our taxpayers.
In fact, both Maui County and the City and County of Honolulu have developers sign a
unilateral agreement ("UK) for their fair share of the impact of the development. Thus the
practice in our County (note that in 2003 the Council passed an ordinance which established
the authority to collect fair share contributions) is consistent with what occurs in both Maui and
Oahu.
2/20/2009
Page 3 of 3
1 am informed both Mr. Goodenow and Mr. Hookano may disagree with the above and believe
Judge Ibarra invalidated the County's fair share assessment. I respect both gentlemen and
fully recognize and respect their opinions, and understand their concern after reading the
Judge's findings and order. I welcome their comments and thoughts so the Council may have
a balanced understanding of the legal issues and concerns.
We simply wanted to set forth in writing the position of our office with respect to the existing fair
share ordinance and Judge Ibarra's order so the Council understands exactly where we are
coming from.
If you have any questions, please let us know. I am respectfully asking Glynis and Laura to
number this communication and distribute to all Council members so there can be meaningful
discussion before the Council tomorrow.
Thank you,
Lincoln
Lincoln S. T. Ashida
Corporation Counsel
County of Hawaii
2/20/2009
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Outline for Zoning, Conditional Rezoning and Fair Share Contributions
1. Counties' Zoning Powers
The counties derive their zoning powers from Hawaii Revised Statutes ("HRS")
section 46-4(a), referred to as the Zoning Enabling Act. The following excerpts from
HRS § 46-4(a) demonstrate the broad powers conferred by the legislature on the counties:
"Zoning in all counties shall be accomplished within the framework of a
long-range, comprehensive general plan prepared or being prepared to guide the overall
future development of the county. Zoning shall be one of the tools available to the
county to put the general plan into effect in an orderly manner. Zoning in the counties of
Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and
area, and the adoption of regulations for each district to carry out the purposes of this
section. In establishing or regulating the districts, full consideration shall be given to all
available data as to soil classification and physical use capabilities of the land to allow
and encourage the most beneficial use of the land consonant with good zoning practices.
The zoning power granted herein shall be exercised by ordinance which may relate to:
(12) Other regulations the boards or city council find necessary and proper
to permit and encourage the orderly development of land resources within
their iurisdictions.
The powers granted herein shall be liberally construed in favor of the countv
exercising them, and in such a manner as to promote the orderly development of each
county or city and county in accordance with a long-range, comprehensive general plan
to ensure the greatest benefit for the State as a whole. This section shall not be construed
to limit or repeal any powers of any county to achieve these ends through zoning and
building regulations, except insofar as forest and water reserve zones are concerned and
as provided in subsections (c) and (d)." (emphasis added).
However, the counties' zoning powers are subject to the following liabilities and
limitations found in HRS § 46-1.5(13), which provides:
Each county shall have the power to enact ordinances deemed necessary to
protect health, life, and property, and to preserve the order and security of
the county and its inhabitants on any subject or matter not inconsistent
with, or tending to defeat, the intent of any state statute where the statute
does not disclose an express or implied intent that the statute shall be
exclusive or uniform throughout the State."
This means that if a county ordinance conflicts with a Hawaii statute that is of statewide
concern, the county ordinance is invalid because it violates article VIII, section 6 of the
Hawaii Constitution and HRS 50-15, the state's supremacy provisions.[ One
example of a land use statute that is of statewide concern is HRS § 205 regarding the
limitations on agriculture land.
2. Zoning and Rezoning Ordinances are Legislative Acts
The Hawaii Supreme court has held that a zoning or rezoning by ordinance is a
legislative function by the county council and is subject to the deference given legislative
acts.2 In other words, a zoning or rezoning ordinance passed, by the county council is
presumed valid by the courts. Accordingly, the challenger of the zoning or rezoning
ordinance has the burden of showing that it is arbitrary, unreasonable or invalid.3
Therefore, as long as a county zoning or rezoning ordinance falls within the broad powers
of HRS § 46-4(a) and does not conflict with a Hawaii statute that is of statewide
concern, it is presumed valid.4
3. Conditional Rezoning
Conditional rezoning, as described by the New York Court of Appeals, is:
"a means of achieving some degree of flexibility in land-use control by
minimizing the potentially deleterious effect of a zoning change on
neighboring properties; reasonably conceived conditions harmonize the
landowner's need for rezoning with the public interest and certainly fall
within the spirit of the enabling legislation."s
An increasing number of state court decisions either expressly hold or strongly
indicate that local legislative bodies possess the authority to rezone with site-specific
conditions, even in the absence of express statutory authority." 6 In general, "state courts
uphold conditional rezoning so long as the rezoning: (1) promotes the general welfare
and not merely private interests; (2) the rezoning does not otherwise constitute illegal
spot zoning; (3) the conditions imposed are reasonable and not otherwise illegal; and (4)
there is no express agreement bargaining away a municipality's future use of the police
power." 7 The following cases exemplify these principles:
'Save Sunset Beach Coalition v. City and County of Honolulu, 102 Hawaii 465, 78 P.3d 1(2003).
2 Id.
7 id.
4 Id.
5 Collard v. Incorporated Village of Flower Hill, 421 N.E.2d 818, 822 (1981).
6 See 3 Rathkopfs The Law of Zoning and Planning 44:4 and 44:12 (4" ed.) (courts in the following
states have either expressly upheld or strongly indicated support for conditional rezoning: Alabama,
Arizona, Arkansas, California, Colorado, Connecticut, D.C., Florida, Georgia, Idaho, Illinois, Indiana,
Kansas, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey,
New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah,
Washington and Wisconsin).
'3 Rathkopfs The Law of Zoning and Planning § 44:12 (4a' ed.)
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II
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(a) Cross v. Hall County, 235 S.E.2d 379 (GA. 1977) (conditional
rezoning ordinance upheld where rezoning was conditioned upon the
applicant agreeing to resurface the road leading to the property and
condition was deemed a proper exercise of the police power in order to
ameliorate anticipated effects from the zoning change).
(b) Scrutton V. County of Sacramento, 79 Ca1.Rptr. 872 (Cal.App. 1969)
(court held that as a general matter, where a state constitution or statute
confers upon a municipality the authority to adopt zoning regulations, the
reasonable exercise of such police power includes the imposition of
conditions for the well-being of surrounding landowners or in order to
promote community development and serve the general welfare).
(c) Transamerica Title Insurance Co. v. City of Tucson, 533 P.2d 693
(Ariz.App. 1975) (Court held that the city may, through its legislative
power, require conditions which promote public convenience, safety,
health, and welfare in order to safeguard the public interest. However,
based on these principles, the court struck down a condition requiring
dedication of lands on properties owned by the developer but not the
subject of the rezoning application.).
The cases cited above clearly stand for the proposition that as a matter of
legislative authority and police power, municipalities may impose reasonable conditions
to rezoning ordinances so long as such conditions bear a reasonable relationship with the
anticipated increases in infrastructure needs which are directly attributable to or created
by the proposed development.
On the other hand, a few state court decisions expressly hold or strongly indicate
that local legislative bodies within their jurisdictions do not have authority to enact a
rezoning ordinance with site-specific conditions under the states' zoning enabling statute
and that such a practice violates the statutory requirement of uniformity for zoning
restrictions within a zoning classification! One example of such a decision is where the
Court of Appeals of Connecticut held in Bartsch v. Planning & Zoning Commission that
a conditional rezoning ordinance was invalid because rezoning ordinance in question
conditioned approval of the rezoning upon the placement on the town land records of a
restrictive covenant limiting the use of the premises to a medical office building and such
restriction was perpetual in nature and ran with the land.9 In so holding, the court stated
that the condition was a blatant violation of the strict requirement of the town's zoning
regulations that zoning regulations be uniform for each class of or kind of buildings,
structures or use of land throughout each district and it created a nonamendable
regulation or use classification precluding future changes pursuant to the town's zoning
regulations.10
s See 3 Rathkopfs The Law of Zoning and Planning § 44:3 (4°' ed.) (citations omitted).
s See Bartsch v. Planning & Zoning Com'n of Town of Trumbull, 506 A.2d 1093 (1986).
° See id
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Similar to the growing trend across the country, the Counties of Hawaii and Maui
and the City and County of Honolulu use conditional rezoning as a means of mitigating
the impacts of development on the communities. In doing so, the counties rely on the
general legislative authority in the exercise of police powers and FIRS § 464(a), which
provides that the zoning power granted to the counties shall be exercised by ordinance
and may relate to:
"(12) Other regulations the boards or city council find necessary and
proper to permit and encourage the orderly development of land resources
within their jurisdictions."
HRS § 46-4 also provides in pertinent part that "[t]he powers granted herein shall be
liberally construed in favor of the county exercising them, and in such a manner as to
promote the orderly development of each county or city and county in accordance with a
long-range, comprehensive general plan to ensure the greatest benefit for the State as a
whole."
In addition, the Hawaii County Council passed Ordinance No. 96-160 in 1996 to
allow conditional zoning.' Section 25-2-44, Hawai'i County Code ("HCC"), authorizes
the council to impose conditions on an application for a rezoning, provided that the
council finds that the conditions are:
(1) Necessary to prevent circumstances which may be adverse to the
public health, safety and welfare; or
(2) Reasonably conceived to fulfill needs directly emanating from the land
use proposed with respect to:
(A) Protection of the public from the potentially deleterious
effects of the proposed use, or
(B) Fulfillment of the need for public service demands
created by the proposed use. ...12
Such rezonings must also be consistent with the General Plan. 13 Thus, in addition to the
general legislative authority to impose reasonable conditions on zoning, there is also
specific, express, or implied enabling authority in the statutory and code provisions cited
above.
Although there is no Hawai'i case law directly on point concerning the authority
to impose such conditions, "we believe that such conditions would be upheld. "14 In
" See Hawaii County Code 1983 (2005 Edition, as amended) § 25-2-44.
12 Hawaii County Code 1983 .(2005 Edition, as amended) § 25-244.
" Hawaii County General Plan February 2005 at 144.
" Quoting legal memorandum regarding Propriety of Rezoning Conditions Requiring Off-Site
Improvements, dated September 17, 1985, signed by Ronald Ibarra, Corporation Counsel.
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Perry v. Planning Commission of County of Hawaii, the Supreme Court of Hawaii held
that, at least in the matter of special permit applications, the planning commission may
impose protective restrictions on the grant and approval of the special permit. The Court
held that such a condition is analogous to conditional rezoning, and, generally, such
conditional actions will be "upheld when the conditions are imposed for the protection
[or] benefit of neighbors to ameliorate the effects of a zoning change."15
Based on all of the foregoing, we believe, as did Ronald Ibarra in his September
17, 1985 legal opinion, that the conditions imposed by the county council on rezonings
will be upheld if challenged in court, so long as such conditions comply with the
requirements of Section 25-2-44, HCC. However, it is ultimately up to the courts to
determine the validity of such conditions, which will be determined by the facts.
4. Fair Share or In Lieu of Fair Share Conditions of Rezoning
Section 2-162.1, HCC, which was adopted by the county council in 2003 after an
impact fee ordinance failed to pass, establishes the authority to collect fair share
contributions. As a condition of a rezoning ordinance, the County Council may require
applicants to make a fair share contribution to mitigate the potential regional impacts of
the development with respect to parks and recreation, fire, police, solid waste disposal
facilities, and roads. The County Council determines whether the fair share contribution
is made as cash, land, facilities, or any combination thereof. The value of the
contributions is based on the cost of public facilities per developed unit. In lieu of paying
the fair share contribution in cash, the applicant may contribute land and/or construct
improvements/facilities related to parks and recreation, fire police, solid waste disposal
facilities, and roads within the region impacted by the proposed development, subject to
the review and recommendation of the Planning Director, upon consultation with the
appropriate agencies and approval of the County Council.
Like any exaction or condition of a rezoning ordinance, fair share contributions
must have a rational nexus to the impact caused by the development. In other words, the
expenditure must benefit the fee-paying development and be directly related to the impact
caused by the fee-paying development. Moreover, the expenditure should not duplicate
the services paid by the development through other means, such as property taxes. An
eligible project for fair share, therefore, should meet the following criteria:
a. Capital improvement (not services that are funded by property taxes as part of
the County operational budget);
b. New construction (not major repairs or renovations that correct existing
deficiencies);
c. Located in the judicial district in which the fair share was collected (to benefit
the fee-paying development);
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s Perry v. Planning Commission of County of Hawaii, 62 Haw. 666, 681-682, 619 P.2d 95, 105-106 (1980)
(citing the Scrutton and Cross cases previously mentioned).
d. Regional benefit (not limited to a single neighborhood or community).
The validity of fair share or any other condition imposed by the county council on
a rezoning ordinance will depend on whether a rational nexus has been established, the
criteria for which is essentially outlined in section 25-2-44, HCC. To determine whether
the condition imposed is reasonable or rational to fulfill the need for public service
demands created by the proposed use, the county council should review the
recommendations provided by the Planning Director and Planning Commission. Because
the Hawaii Supreme Court has held that rezoning ordinances are legislative actions, any
rezoning ordinance passed by the county council is presumed valid by the court. Anyone
who challenges such a rezoning ordinance has the difficult burden of proving that the
rezoning ordinance is arbitrary, unreasonable or invalid. As mentioned previously,
however, it is ultimately a decision that must be made by the courts.
5. Judge Ibarra Did Not Find Fair Share Contributions as Conditions of Rezoning
Illegal in the Coupe Case
There has been much discussion in the local newspapers regarding Third Circuit
Court Judge Ronald Ibarra's Findings of Fact, Conclusions of Law and Decision and
Order in the case County of Hawaii v. Robert Nigel Richards, et al. (or commonly
referred to as "the Coupe case"). As indicated by Corporation Counsel Lincoln Ashida in
his legal opinion emailed to the county council on January 22, 2009, Judge Ibarra did not
order the County's fair share contributions illegal. In fact, the issue of the County's
power to impose fair share contributions as conditions of rezoning ordinances in general
was not even before the court in the Coupe case.
I
To understand exactly what the court concluded and ordered, it is necessary to
read the Findings of Fact, Conclusions of Law and Decision and Order in its entirety. In
doing so, you will find that all of the Findings of Fact with regard to fair share are based
on the development agreement and not fair share in general. A court's conclusions of law
and order are derived from its findings of fact. A court cannot arrive at conclusions of
law that are unsupported by its findings of fact. The court in the Coupe case found in
part that the fair share assessments as used in the development agreement were illegal
because they were being imposed on private property owners who had not participated in
the negotiations for this thirty-year "fair share" allocation in the development
agreement.16 In other words, unlike the legislative process under section 25-2-44, HCC,
which authorizes the county council to impose conditions on rezoning ordinances, the fair
share condition in the development agreement was being imposed on landowners who
had not even applied for a rezoning of their properties. Based on all of the Findings of
Fact and Conclusions of Law, the court rightfully ruled that "the `fair share' assessment
provisions in the Development Agreement are illegal." 17
6 See County of Hawaii v. Robert Nigel Richards, et al (Coupe case), First Amended Findings of Fact,
Conclusions of Law, and Order, Finding of Fact No. 50.
See id at Conclusions of Law Nos. 2 and 3.
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Moreover, the important question to ask is how could Judge Ibarra conclude or
order that the county council's practice of imposing fair share conditions on rezoning
ordinances is illegal when that issue was never before the court.
6. The Impact Fee Statute Did Not Invalidate the Council's Power to Impose
Conditions on Rezonine Ordinances
There is no indication in the legislative history of HRS § 46-141 et seq. (Act 282
relating to Impact Fee Authorization) that the state legislature intended to invalidate the
conditional rezoning practices of our County and that of Maui County and the City and
County of Honolulu. In the purpose section of Act 282, the legislature found the
following: '
"The legislature finds that development and construction for
residential, commercial, industrial, hotel,. and other purposes have placed a
significant burden upon existing public facilities. The legislature further
finds that present and future development Aril place severe burdens upon
existing public facilities, resulting in a substantial and detrimental impact
upon the quality of life, health, and general welfare of our population. The
legislature recognizes that in order to maintain an acceptable capacity of
public services and to preserve the quality of life in the region, some
counties have adopted impact fee ordinances that establish a system of
financing the development of public facilities by assessing, on a pro rata
basis, the reasonably anticipated costs of developments and improvements.
The legislature finds that the imposition of an impact fee to provide for
public facilities and services required by such development is both fair and
reasonable.
In response to county interest in impact fee legislation, the
legislature finds that there is a need to establish general guidelines and
provisions for adoption of impact fee ordinances and assessment of impact
fees.
The purpose of this Act is to set forth general guidelines for the
adoption of impact fee ordinances and to establish uniform general
provisions for county impact fee ordinances adopted after the effective
date ofthe Act."t8
So, clearly the legislature's purpose in passing Act 282 was to set guidelines for counties
wishing to pass impact fee ordinances, but not to prohibit other types of development
exactions such as conditional rezoning. Further evidence of this is found in HRS § 46-
148 ("Transitions"), which provides:
"Any county requiring impact fees or imposing development exactions,
in order to fund public facilities, shall incorporate fee requirements into
their broader system of development and land use regulations in such a
manner that developments, either collectively or individually, are not
"Act 282, § 1, 16'h Leg., Reg. Sess. (1992).
I
required to pay or otherwise contribute more than a proportionate share of
public facility capital improvements." (Emphasis added).
A plain reading of the above section of the impact fee statute, combined with the
lack of evidence in the legislative history as discussed above, evidences that the,
legislature did not intend to prohibit the counties from imposing other types of
development exactions, thus the language "or imposing development exactions," but
rather the development exactions imposed by counties must not be more than a
proportionate share of the public facility capital improvements, which, at least for Hawaii
County, is incorporated into sections 25-2-44 and 2-162.1, HCC.
On the other hand, it could be argued that because the County's formula
determining the fair share contributions per single family residential is set forth in a
policy memo rather than in the county code, it may not in compliance with HRS § 46-
148. For example, the formula for determining the amount of land required for parks is
set forth in Chapter 8, HCC. The county council could amend the County Code to j
include the fair share formula, if it so chooses. However, with respect to the validity of
the County's present system, it is ultimately up to the courts to make such a
determination.
7. Fair Share Conditions on Rezoning v. Impact Fees
There are pros and cons for both fair share conditions on rezoning and impact
fees. It is up to the council to decide whether to continue with the current system of fair
share conditions on rezoning or to pass an impact fee ordinance. As previously
explained, the current system provides more flexibility for land-use control by
minimizing the potentially deleterious effect of a zoning change on neighboring
properties and the community (i.e., fair share contributions can be made as cash, land,
facilities, or any combination thereof); whereas, impact fees are only made as cash but
eliminate the challenge of determining whether the conditions have a rational nexus to
the impact caused by the development.
As your legal counsel, it is not our intent to advocate for one over the other, but to
hopefully provid you with enough information to make an informed decision. However,
if the council should decide that it prefers impact fees over the fair share conditions of
rezoning, we recommend that the council pass the impact fee ordinance prior to
rescinding fair share. To do otherwise would burden our County's resources in not
having developers provide their fair share.
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