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HomeMy WebLinkAboutCOM 0093.004 2012-2014 COINTy�TY CLERK RAWArz TESTIMONY of MICHAEL J. MATSUKAWA Time 9, 5 RECEI vED on Date`'� BY 7 y BILL NOS. 291 AND 59 MEMBERS OF THE HAWAII COUNTY COUNCIL: The County Council should understand the subject that the council is reviewing under Bill Nos. 291 and 59, which is "planned unit developments" (PUDs)and the process by which such developments are permitted. First, despite suggestions that a PUD is nothing more than and the equivalent of a "variance" o the contrary, a PUD is a special kind of land use permit and is so described in the Zoning Code. The Hawaii Supreme Court has previously explained the character of a permit like a PUD as being an "exception" and not a "variance.".1 Every jurisdiction throughout the country has its own laws and procedures governing a PUD. Second, the PUD has been a part of the county's zoning law since at least 1967 (Section 33, Ordinance No. 63) and was originally administered by the planning commission. Third, the suggestion that the county charter has delegated the authority to administer a PUD permit solely to the planning director assumes that a PUD is, as some have suggested 'just a variance" which is not a correct statement. The Hawaii Supreme Court has already addressed the difference between and "exception" and a "variance." The county council created a PUD and the county council has the authority to determine how that permit is best administered. Bill Nos. 291 and 59 present only two alternatives for consideration and the county council should investigate ALL options that best serve the residents of the • County of Hawaii. Thank you very much. Michael J. Matsukawa 75-5751 Kuakini Highway, #201 Kailua-Kona, HI 96740 1 The Hawaii Supreme Court describes an "exception" as a "land use control device" that deals with "the hardship frequently visited upon land- owners due to the inherent rigidity of the Euclidean zoning system" and is different from and should not be confused with a "variance." Neighborhood Board No. 29 v. State Land Use Commission, 64 Haw. 265, 270-271 (1982). Comm.No. 4'3. V Ref.To: Q /dG Ref. Date JuL 9 2013 RULES OF STATUTORY CONSTRUCTION Introduction The fundamental rule applicable to the interpretation of an organic document like a county charter is to interpret its language as written if the words are clear and unambiguous. Further, voters who adopted that language are presumed to have used the language in their natural sense. County of Hawaii v. Ala Loop Home- owners, 123 Haw. 391, 404 (2010). The provision in question that the voters of Hawaii County adopted in 2010 reads as follows: The director of environmental management shall be appointed by the mayor, confirmed by the council, and may be removed by the mayor. The director shall have had a minimum of five years of administrative experience in a related field and an engineering degree or a degree in a related field. (emphasis added) Rules of Interpretation The general rule discussed above is similar to that used in interpreting other kinds of legislative material, such as statutes and ordinances. For example, effect must be given to the intent of the enacting body(here the voters of the County of Hawaii) , which intent is obtained from the legislation itself. Leslie v. Board of Appeals, 109 Haw. 384, 393 (2006). Words should be given their common, ordinary meaning to the extent possible. Keliipuleole v. Wilson, 85 Haw. 217, 221 (1997). Further, the dictionary meaning of a word may also be used. Nuuanu Valley Association v. City and County of Honolulu, 119 Haw. 90, 98 (2008) (meaning of"maintain"). Assuming that the words "an engineering degree or a degree in a related field" are ambiguous, the rules called "noscitur a sociis" and "ejusdem generis" may be employed. These rules require one to interpret the meaning of a particular word in context of surrounding or associated words. Peterson v. Hawaii Electric Light Company, 85 Haw. 322, 328-329 (1997). Finally, what a sponsor of a particular piece of legislation may have said is not relevant. The primary rule is "to give effect to the [enacting body's] intent," which is to be obtained from the language of the legislation itself." Dines v. Pacific Insurance Co., 78 Haw. 325, 332 (1995). Focus should be on the intent of the county voters who adopted the charter amendment in question as that intent can be gleaned from the ballot measure and the language of the amendment itself. DISCUSSION The charter language in question is not ambiguous. The language is clear and plain on its face. The voters declared that the director of the environmental management depart shall (i.e., must) have • an engineering degree; or • a degree in a related field. Applying the rules of interpretation discussed above, one must conclude that the expression "a degree is a related field" refers back to "an engineering degree" and must be interpreted in that context. In other words, if someone does not have an engineering degree, he/she must have a degree in a field that is related to engineering. A dictionary meaning of the word "relate" is to have a relationship or connection to something, in this case a connection or relationship to the discipline of engineering. The qualification of an individual to hold a public office can be ultimately tested through a process called a "writ of quo warranto." No extended trial is involved and the court is asked to examine the facts and the law and to determine whether a person who has been seated in a particular office satisfies the charter requirements for that office. Dejetley v. Kahoohalahala, 122 Haw. 251, 265-267 (2010).