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FAX TRANSMISSION
Date: January 26, 1999
To: Hawaii County Council
Fax # 961 -8912
From: Jerry Rothstein
329 -1568, fax 329 -5464
Re: Bill 250
Pages: 7 including this:
2 pages: Letter to County Council
3 pages: Viewpoint
l page: 33 Day Schedule
Comm Ns. BR.
File No. /►iCe 1ZN6-
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?FM-26 -9? 98:35 HM JERRY ROTHSTEIH 329 5464
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January 26, 1999
Mr. James Y. Arakaki, Chair.
and Council members
Hawaii County Council
25 Aupuni St.
Hilo Hawaii 96720
Dear Chairman Arakaki and Council members,
At the January 15 Planning Committee meeting you were informed of the
plan to process passage of Bill 250 (the '96 zoning code) in 33 days beginning
February 1 or February 15 (depending on when the Ramsayering of drafts 4 and 8
is finished.)
The 33 day process is to begin on Day 1 with a workshop and public hearing
in Kona followed by the same on Day 2 in Hilo. According to the committee chair,
the bill will then go directly to the council for first reading and two weeks later to
the council for second reading. (See attachment.) It is unusual for any bill,
especially one of this magnitude, to bypass committee hearings and instead go
directly to public hearings and the Council.
The reason given me by the committee chair was that the court order
indicated that the bill be "referred back to the County Council for ratification."
This was taken to mean that the bill could not first be sent to committee as is the
standard practice.
This letter is to assure you that was not what Judge Ibarra intended. He
clearly stated on January 6 at the hearing initiated by Corp Counsel Wurdeman, at
which both he and Mr. Giannini were present, that how the Council went about
passing a zoning code was entirely up to the Council provided it was done in
compliance with the Sunshine Law. He indicated that passing a zoning code was a
political process and entirely up to the Council. Accordingly, there is no court
mandate to bypass the Planning Committee. Please check with the Corp. Counsel
to confirm this.
Also, referring Bill 250 "to the Council for ratification" is the correct
language because a committee can't pass a bill. However, such language does not
preclude sending the bill to committee first, as is the usual Council procedure. If
JAN -26 -99 08:36 AM JERRY ROTHSTEIH 329 5464
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the decision is made to bypass the Planning Committee and proceed directly to
workshops, public hearings and first reading as proposed, it is not because the
court ordered the Council to, but because the Council chooses to.
Holding workshops and public hearings on Days land 2 of the proposed 33
day schedule, is to conduct these important functions in an untimely manner i.e.
before the public has any knowledge of what's going on and what issues are
involved. The public could have as little as one week to review the draft(s) before
public hearings are held. The proposed schedule is in effect putting the cart before
the horse and serves only to facilitate unduly rapid adoption of Bill 250 rather than
careful review and informed public input.
This letter is to respectfully request that Bill 250 be sent first to the
Planning Committee as is the usual procedure with a new bill. Bill 250 is such a
bill for this Council. This would allow initial committee review, initial public
testimony, discussion as to how to proceed, and media coverage to inform the
public before workshops and public hearings are held.
I further request that the Hawaii County Council engage in a thorough
review of the proposed zoning code rather than a predetermined hasty adoption of
it which the '96 Council did in the first place When it comes to adopting the
Hawaii County Zoning Code, 33 days in the sunshine isn't any better than 8
months in the dark.
I urge the Hawaii County Council to seize this unique opportunity
afforded you by the Court's remand of Bill 250. (Do you know that the '96 zoning
code transfers certain powers from the Council to the administration ?)
Thank you for your favorable consideration of my request. If you have any
questions please call me anytime at 329 -1568.
Attached please find a copy of my Viewpoint as submitted to West Hawaii
Today and Hawaii Tribune Herald.
Y1rs for a fetter ay
'rrry Rothstein CDCW
76 -123 Royal Poinciana Dr.
Kailua -Kona, Hawaiiisland 96740
JAH- i. -'99 08 ;56 AM JERRY ROTH:TEIUI 329 5464 P.134 6
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January 21, 1999 Viewpoint
LET THERE BE SUNSHINE
This Viewpoint is about a landmark Sunshine Law case decided Dec.21,
1998, in Third Circuit Court in Kealakekua by Judge Ronald Ibarra.
Civil 97 -028K (Rothstein et al. v County of Hawaii et al ) challenged the
action of the 1996 Hawaii County Council which. as its final action before six of
its nine members left office, passed Bill 250, a Yamashiro administration bill
which comprehensively amended the Hawaii County zoning code.
The Court held that the zoning code (Ordinance 96 -160) was passed in "wilful
violation" of the State Sunshine law, declared it "voidable" but not void, and
referred it back to the County Council for ratification. The Court ordered Bill 250
to be properly marked to show changes from the prior zoning code and gave the
Council until September 1,'99, to pass the bill after which it would be void
The Court's message to the Council is "Let there be Sunshine."
I'd like to share with readers: (1) information about the lawsuit, (2) some
major zoning code changes that were passed "in the dark," (3) whether the Council
should do a comprehensive review of the zoning code with adequate public input,
or a fast track ratification, (4) what you can do to protect your rights.
The lawsuit: Several Sunshine Law violations occurred in passing the `96
zoning code. The Council processed five drafts in nine days, some of which had
substantive changes, without providing separate advance public notice; drafts listed
on the agenda were replaced by drafts not shown on the agenda; the substitute
drafts were not made available to the public in advance of meetings, none of the
drafts were marked to show the administration proposed changes from the then -
existing zoning code (by underlining additions and bracketing deletions); only the
title of the bill appeared on public notices and agendas and did not convey
information to inform the public of the substance of the bills.
Contrary to the stated purpose of the bill to "eliminate duplications and
conflicts with other parts of the code and state law," the bill was in fact a thorough
revision of the entire zoning code
After nearly two years of litigation, the Court held that the Hawaii County
Council "overrode.., the public's attempt and desire to participate in the decision -
making process, and passed Bill 250 Ordinance 96 -160 to achieve a predetermined
end of enacting the measure before a new County Council took office."
The existing zoning code remains in effect until a new zoning code is passed
(prior to September 1, 1999). The Court did not invalidate any action of the
P)&ming Department or the Council. That would require further action by the
Court if and when such a case is brought to it
?All -26 — ?9 tar :3, AM ?EF.P i' ROTHSTEIN -2? 5464 F.�3g' •
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Some major changes passed in the dark:
(1) allowing 100 foot heights for agricultural structures in the Agricultural District
at the discretion of the Planning Director,
(2) allowing 500 foot telecommunication towers in residential districts with a
permit, and in agricultural areas without a permit,
(3) limiting the CounciI's ability to set conditions on development,
(4) allowing small hotel (up to 40 units) on Ag or Open lands with a Use Permit,
(5) transferring establishment of the shoreline setback from the Council to the
administration,
(6) transferring authority to approve marinas from the Council to the Planning
Commission,
(7) eliminating all previous requirements to do an EIS,
(8) eliminating the Unplanned District and absorbing it into the Ag 5 District, and
(9) eliminating contested case hearings when Use Permits are considered.
Opportunity for comprehensive review of zoning code: The court's
remand of Bill 250 provides a genuine opportunity for the `99 Council to do a
thorough review of the unlawfully enacted `96 zoning code.
The remand allows both the Council and the public to identify and evaluate
the land use changes from the old code instead of merely re- adopting the `96 code
with minimal review and nominal public input.
It is likely that most of the present Council members are not fully aware of
the complex provisions and many major changes made by the '96 Council. Three
of the nine were newly elected in 1998. Only two of the nine current council
members (Arakaki and Smith) were on the '96 Council that passed Bill 250. (De
Lima, Childs, Domingo & Easley also voted for it. Ray, Osorio, & Van De Car
voted against it.)
The Court gave the Council up to eight months to adopt a zoning code, the
same time it took the '96 Council. A comprehensive review can be accomplished
in half the time. While a few parties may be temporarily inconvenienced by the
time it takes for a comprehensive review, every citizen is sooner or later impacted
by, and has a stake in, the zoning code.
I believe that the '99 zoning code should be based on the work of the `99
Council done in the light, instead of the work of the '96 Council done in the dark
page 2
JPH -26 -99 OE ;37 fiM JERRY ROTHSTEIH 329 5464
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Proposed fast track ratification: The Yamashiro administration seeks
rapid ratification on the grounds that to do otherwise would disrupt the planning
process. The thirty three (33) day fast track ratification planned by Planning
Committee Chair Leithead -Todd, which can start as early as February 15, fails to
include any committee meetings where the real work of reviewing the zoning code
occurs. Instead, Day 1 of 33 is a workshop in the morning and a public hearing in
Kona. Day 2 is the same, in Hilo. The bill would then proceed directly to the
Council for ratification
While such high speed ratification may comply with minimum Sunshine
requirements, it falls far short of a thorough review by the Council and a genuine
opportunity for informed public input. To handle ratification of Bill 250 as an
express train without local stops is to cater to the few at the expense of the many
What you can do: (a) call your councilperson and ask for a thorough review
of Bill 250 instead of rapid ratification, (b) review the changes in the draft zoning
code which will be available at all local libraries and in Planning Department and
County Council offices in Kona and Hilo, (c) ask your community organization to
form a committee to study the draft, (d) support amendments that are beneficial
and object to those that are not by writing or calling your councilperson, (e) attend
workshops, public hearings, and Planning Committee & County Council meetings,
(f) watch these meetings on public access TV (call Na Leo 0 Hawaii at 935 -8874
for the schedule), and (g) as our councilperson for a "zoning code workshop" in
your district. / /7
---44.7
Jerry Rothstein, C P W, 76 -123 Royal Poinciana Dr. K -K Hawaitisland 96740
page 3
JIM -26 -99 00:38 WI JERRY POTHSTEIli 3 =9 5303 P.0i
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January 26, 1999
County Council
25 Aupuni St.
Hilo Hawaii 96720
33 DAY SCHEDULE FOR ADOPTING BILL 250
AS INDICATED BY PLANNING COMMITTEE CHAIR
pN JANUARY 15, 1999
If Ramsayering Bill 250 (drafts 4 & 8) is finished by February 8 (in order to meet
Sunshine Law notice requirements) the proposed schedule is:
Mon. Feb. 15 morning workshop & evening public hearing in Kona
Tues. Feb. 16 morning workshop & evening public hearing in Hilo
Mar. 3 County Council 1 reading
Mar. 17 County Council 2 reading
If not ready for 2/15 meeting, the proposed 33 day schedule will begin Monday March 1
Submitted by Jerry Rothstein, CDCW, Hawaiiisland 96740