Loading...
HomeMy WebLinkAboutCOM 1784.001 1984-1988 -.pJNtY OF..... DANTE K. CARPENTER JOHN A. WAGNER MAYOR • CORPORATION COUNSEL '•.; =�: TELEPHONE NO. (808)961-8251 ,•+5.•• M�.0 1St COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL HILO LAGOON CENTRE 101 AUPUNI STREET,SUITE 325 HILO,HI 96720 October 14, 1988 Honorable Stephen K. Yamashiro, Chairman and Members of the County Council County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairman Yamashiro and Members : Re: Public Hearing (Kohanaiki) You requested an opinion on whether or not the council can hold a public hearing on Monday, October 17, 1988 . The purpose of this hearing is to hear public statements concerning the Kohanaiki rezone application. We understand that your concern is that there was not sufficient time to give six days ' public notice prior to scheduling this hearing. For the reasons stated below and subject to the limitations expressed therein, we conclude that it is permissible to hold this public hearing on October 17, 1988 . We understand that : 1. This hearing was scheduled unilaterally by the council chairman; 2 . It was specifically requested by citizens; 3 . There is no legal requirement for this hearing; and Comm. Nor, / 76`',/ File No., z Na//Cft/ Ref. Toi. Ref, OCT 17. 19 a Honorable Stephen K. Yamashiro, Chairman and Members of the County Council Page 2 October 14 , 1988 4 . The sole purpose for the hearing is to hear public statements concerning the Kohanaiki rezone application. In a situation such as this, where the public hearing is requested by citizen groups, there is no legal requirement for a public hearing, and the action of the council at the hearing is limited to only listening to public statements, the council may hold this hearing even though the published notice of hearing is less than six days . The six-day notice requirement only applies to "meetings" where the council members assemble in order to make a decision or deliberate toward a decision, i .e. , discuss among themselves pending items . Therefore, in conducting this public hearing the members present must not discuss the proposed rezone application among themselves . Such discussion would be construed as deliberating toward a decision on the Kohanaiki rezone and would be in violation of the sunshine law because this is a public hearing as distinguished from a council meeting which must be preceded by six days ' notice. The purpose of this public hearing, therefore, must be limited to hearing statements from the public without any council discussion, among themselves, of the Kohanaiki rezone. The scheduling of this public hearing must be preceded by reasonable notice, published in a newspaper of general circulation, such as the Hawaii Tribune-Herald. Section 92-41, H.R.S. With regard to the council chairman' s apparent unilateral scheduling of this public hearing, it must be pointed out that there is no specific authority which authorizes the chairman to unilaterally schedule this hearing. However, even if the chairman' s scheduling of this hearing were successfully challenged, it would not affect the legality of the proposed rezoning ordinance. This is so because this hearing is not required by law and is in effect only a voluntary assemblage of council members to hear citizen statements on the proposed Honorable Stephen K. Yamashiro, Chairman and Members of the County Council Page 3 October 14, 1988 zoning ordinance. ' Therefore, as the hearing is not required by law and council participation at the hearing is voluntary and limited only to listening to public statements, the fact that the scheduling of the hearing may have been without authority will not affect the legality of the Kohanaiki rezoning ordinance if adopted. Please contact me if you have any questions concerning this matter. Ve truly yours, • A JO A. WAGNE' , Co •c ration Counsel JAW:h 'Unauthorized scheduling of a hearing that the council was required by law to hold might, depending on the circumstances, render the resulting ordinance invalid. That is not the situation that this opinion addresses . October 19, 1988 C-1784.1 John A. Wagner CORPORATION COUNSEL Public Hearing - Kohanaiki October 17, 1988 October 14, 1988 Committee on Planning November 15, 1988 C-1784.2 Dante K. Carpenter MAYOR Bill 627, Draft 4 - Kohanaiki rezoning November 10, 1988 November 7 , 1988 Committee on Planning