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Home My WebLink AboutCOM 0088.000 1998-2000 Nq . O I of •'; ^ =� • ''w�'. BOBBY JEAN LEITHEAD -TODD • "• lJru. '•. Phone: (808) 961 -8261 Councilmembn;!fl: - '�' FAX: (808) 969 -3291 YO G J Jhl 5 . COUNTY COUNCIL l'i' ;, County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 DATE: January 5, 1999 TO: All Council Members FROM: Bobby Jean Leithead -Todd k RE: Corporation Counsel Memorandum Regarding Judge Ibarra's Order in Zoning Code Case For your information, I am forwarding a copy of a memorandum dated December 29, 1998, from Corporation Counsel Richard Wurdeman to Planning Director Virginia Goldstein clarifying Judge Ibarra's Order in Rothstein v. County of Hawaii, Civil No. 97 -028K. This memorandum, together with the results of the subsequent Motion To Amend (also forwarded to you in binder), should answer Council questions raised in the County Council meeting of December 23, 1998. Att. Con No. 8g File No. H rc/ #G ;Ref. poi Presonfed P RAC Date WAN 5 1999 . 1 Stephen K. Yamashiro ,i4 �J f , Richard Wurdeman Mayor • __ wT ; � Corporation Counsel � .` t � dIIUnfg of g .xflzttii3 OEC 29 Pl 1 48 OFFICE OF THE CORPORATION CQUNSEL } 101 Aupunl Street, Sulu 325 • trllo, naval 96720-4262 • (808) %$2 131 • Fax 1808) %14622' "' December 29, 1998 TO: Virginia Goldstein Planning Director FROM: Richard D. Wurdeman/ Corporation Counsel RE: Judge Ibarra's Order in Zoning Code Case This is to clarify Judge Ibarra's Decision and Order issued on December 21, 1998 in the case of Rothstein v. County of Hawaii, Civil No. 97 -028K, the case which challenged the validity of the Zoning Code, which was passed as Ordinance No. 96 -160, and became effective on December 7, 1996. There has been some confusion as to the meaning of this order, and some questions have arisen about what law is in effect. In addition, there have been questions about the December 28, 1998 memorandum from Deputy Corporation Counsel Frederick Giannini on this subject and that memorandum is hereby replaced. The brief answer is that the Zoning Code that was passed in 1996 remains the law until the Council takes action or September 1, 1999 if the Council does not take action, and that the Planning Department should continue to process permit applications, change of zone requests and general plan amendment requests in the same manner as those matters are handled presently. In his order, Judge Marra clearly based his decision on HRS Chapter 92, the so- called "Sunshine Law." As noted in his Conclusions of Law Nos. 3 and 4, he rejected the Plaintiffs' challenges based on the County Charter due to lack of standing. As Conclusion of Law No. 11 states, HRS section 92 -11 provides: "Any final action taken in violation of Sections 92 -3 and 92 -7 shall be voidable upon proof of wilful violation." [Emphasis supplied.] The judge's decision then finds that the Council wilfully violated the Sunshine Law; thus the Zoning Code is voidable. The term "voidable" has a specific meaning in law, and must be distinguished from terms such as "void" or "null and void ". "Voidable" means a valid act which may be declared void, rather than an act which is void from the outset: Things are "voidable" which are valid and effectual until they are avoided by some act; a "voidable act takes effect as intended, and continues to be effectual until it is set aside or nullified as to all or some parts of the persons or things which were affected by it. 92 C.J.S. "Void" at 1023. 0 0 Ms. Virginia Goldstein Page 2 December 29, 1998 Therefore, a law passed in violation of the Sunshine Law of valid until such time as the court declares it void. In Conclusion of Law No. 16, Judge Ibarra indicates the point at which the action triggering "voidability" occurred at the point after passage of Draft 4 of Bill 250. He then gives the Council an opportunity to ratify the passage of the law by ordering that Bill 250 (Draft 4) be referred back to the Council for ratification. If the bill is not ratified by September 1, 1999, then the law will be declared void at that point and is not longer in effect. Until such time, however, the present law, which resulted from Ordinance 96 -160, is still the law. In the `worst case" situation, if the Council fails to ratify the present code before September 1, 1999, then the `old code" (Hawaii County Code, Chapter 25, as it existed prior to December 7, 1996) will again become the law. This conclusion is based upon the structure of Ordinance No. 96 -160. Section 1 of the law stated that Chapter 25 of the Hawaii County Code is "hereby repealed." Section 2 of the ordinance states that a new Chapter 25 is added to the Hawaii County Code, and then states the revised code. If the law is voided on September 1, 1999, then the repeal of the "old code" is also voided. Unless there is some statute to the contrary, the common law rule is that the repeal of a repealing statute or ordinance revives the prior law, without formal words of revival, unless it is otherwise provided in the repealing statute or ordinance. 6 McQuillan, Municipal Corporations, §21.42; U. S. v. Philbrick, 120 U.S. 52, 7 S.Ct. 413 (1887); Barrett v. Pen-y, 191 S.E.2d 74 (Ga. 1972). In the present case, the order is akin to a repeal, and voids the law as September 1, 1999, if no other action is taken. It is an accepted rule of law that no valid ordinance may be repealed by an invalid one, either expressly or by implication. 6 McQuillin, Municipal Corporations, §21.47. If Ordinance No. 96 -160 is voided as of September I, 1999, it cannot repeal the ordinance which was previously valid, the "old code." Consequently, the "old code" is the effective law. Under the `old code," non - conforming uses of land or of a building may continue to the extent they existed at the time of adoption of the code, subject to restrictions on enlargement and replacement. Hawaii County Code §25 -79 (1996 Ed.) Courts have held that equitable estoppel applies to a government exercise of its zoning power when property owners in good faith, upon an act or omission of the government, has made a change of position or incurred extensive obligations or expenses. North Miami v. Margulies, 298 S.2d 424 (Fla. App. 1974). This principle is often used synonymously with that of "vested rights," although they are founded on different elements, in that vested rights focuses on whether the owner has obtained real property rights, rather than the equity of the situation. Allen v. City and County, 571 P.2d 328, 329, 58 Haw. 432, 435 (1977). Nevertheless, their application usually results in identical conclusions. Ibid. County of Kauai v. Pacific Standard Life Insurance Co., 653 P.2d 766, 65 Haw. 318 (1982), appeal dismissed, 460 U.S. 1077, 103 S.Ct. 1762, 76 L.Ed.2d 538 (1983). Thus, in Hawaii, when the County has taken its final discretionary action, it has granted official assurance for zoning purposes. Life of the Land v. City Council, 606 P.2d 866, 61 Haw. 390 (1980). 0 0 Ms. Virginia Goldstein Page 2 December 29, 1998 In County of Kauai, supra, however, the final discretionary action (a shoreline management area use permit) was taken when a referendum changing the applicable zoning had already been certified. There, the court found that where applicants had engaged in a race to beat the effect of the referendum process, the element of good faith does not exist, an estoppel does not therefore apply, and that reliance on county approvals in that situation was unreasonable. In our present situation, with the uncertainty of whether the council will ratify the "new" zoning code, like considerations would apply. While it is probable that any actions taken prior to the filing of the court's order on December 21, 1998, would be protected by these principles of equitable estoppel, applicants are now on notice that the code is subject to the uncertainty of a legislative act, much the same as the Nukoli'i developers facing a referendum election. Under these circumstances, therefore, we believe that any permit or privilege granted under the "new" code, between December 21, 1998, and council ratification, which would not result in a use permitted under the "old" code, is subject to the same possibility of being rendered illegal, as was the Nukoli'i development, and that such developers are proceeding at their own risk, and should be so advised. Nevertheless, until any action is taken by the County Council, the Planning Department should continue to process applications for permits, changes of zone pursuant to the present law, which is Ordinance No. 96 -160. Should any members of the public have questions as to their specific situation, they should be advised to consult their attomeys. Planning Department personnel should not give legal advice to the public which would later be construed as an official assurance of legality. RDW:mo cc:blocs. Bobby Jean Leithead -Todd Chairman, Planning Committee County Council RDW Goldstein Itr.wpd