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Home My WebLink AboutCOM 0088.016 1998-2000a>r Van PERNIS, SM ITH & VANCIL Mark Van Pernis ATTORNEYS AT LAW, A LAW CORPORATION Phone (808) 329.355 David E. Smith 75.167 F HUALALAI ROAD,, SUITE. B Fax (808) 329 -6185 Cary W. Vancil P. O, BOX 1837- i ._ a -mail William 1. Zimmerman KAILU'A -KONA, HAWAII 96740 vsv @konacoast.net r February 16, 1989 J. Curtis Tyler, III County Council, County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 (via fax 961 -8912) Please accept the below as my testimony concerning Bill 250. I cannot attend the upcoming public hearing in Kona. I am an attorney in West Hawaii with over twenty years of experience, with a concentration on real estate matters, and with many developers among my clientele. I have participated in the development of many subdivisions and commercial buildings in North and South Kona, including currently on -going residential subdivisions. I have also extensively and in detail followed the case of Rothstein et al v. County of Hawaii et al. This case and its outcome (overturning the new zoning code) was entirely predictable and inevitable because of the known improprieties in the last Council passing that fatally flowed code, as voiced by some council persons then in office at that time. It may be worthy of comment that the Plaintiffs Mr. Rothstein and Ms. Granham on their own and without attorneys overcame Mr. Wurdeman and the power of the whole Corporation Counsel office in that case. It was that easy and predictable. What concerns me now is that the present Council may be too seriously taking the advice of the losing Corporation Council's office as to the meaning of Judge Ibarra's ruling and the "need" (false, I believe) of a need to rush to judgment on old draft four of Bill 250, again without adequate public input and consideration, such as in committee. This concept of doing it fast instead of doing it right may not only result in more likely successful litigation to set a new Bill 250 aside, bit it may also result in a poor zoning code, adverse primarily to West Hawaii, representing developers and their apologists in the current administration, rather than your constituency. Please listen to the representatives of West Hawaii among your colleagues. They speak for those most impacted by this Code. (Remember that Mr. Wurdeman's office was wrong about SMA's and their automatic approval also.) Also of great concern to me is the argument, unsupported by any facts. that developers and the economy of the County somehow are adversely Comm. No 80,/6 File No. ' N cc /L N (? Ref. To: Go C t T(1' 0 N 12 0:7 T 6619T 5 SST96Z °0 QI Ref. Date 7.190_o.R� affected if you don't unthinkingly rush through a zoning code that would allow for many of the unwanted developments rejected in the past and which would give the Mayor and his unelected and unaccountable appointees at the Planning Commission much of your vital land use and planning powers. I can state without reservation that Judge Ibarra's decision has had no negative effect whatsoever on any aspects of the subdivisions, under development I represent nor their financing, nor developers intending to develop in West Hawaii I am aware of, nor their financing. And I represent developments from a multi - million ocean front gated community to a low end affordable housing residential subdivision. In fact, I believe that Judge Ibarra's decision helps developers by getting an obviously defective zoning code off the books, and giving the Council a change to do it right this time. Don't be misled that you have to do it fast. Compare this, for example, with the January 22, 1999 letter of John Michael White (Communication No. 88.03). Mr. White, as a "developer's representative" does not develop land himself, in his letter refers to no fact or instance that supports his arguments, and can take "credit" for involving the government in litigation based on improprieties and misrepresentations such as Kona Bay Estates and in Kohala. The concept of doing it fast (but inadequately) because it can be amended later, is unacceptable. The administration's ability to veto such amendments, which is likely, must be recognized. By "doing it right ". I mean the following, which will require a revisions of draft four of Bill 250. A. Do not transfer these activities to the mayor and his appointees at the Planning Department or Commission. Keep the County Council empowered to deal with them with allowance for public input and contested case proceedings. 1. No 100 feet or 500 feet high towers without notification of those affected and public impact Sections 25 -4 -12, 25 -4 -22, and 25 -4 1 1(c) . 2. No commercial harbors, marinas, or boating facilities without the full panoply of public rights and involvement. Sections 25-2 - 61(a), and 25- 5- 162(b). 3. No small hotels ( "lodges ") or commercial guest houses without proper zoning, connection with an appropriate use, and adequate infrastructure, along with the full panoply of rights for those affected and Council input. Sections 25- 1- 5(b)(43), 25- 1- 5(b)(55), 25- 1- 5(b)(67), 25 -5- = ;tn'ON 60 :71Z 66,91 H3� SOT95'- �OO:QI 52(c)(7), and 25- 5- 72(c)(9). (Is this a Bishop Estate relief bill, enabling them to get better rents on agricultural land from bed and breakfast operations? From my experience representing B and B's, they're very small, don't make any money or significantly contribute to employment, are not popular with their neighbors, and there are no hard facts that they contribute to "ecotourism ".) 4. The Mayor and his appointees should not have exclusive power over shoreline setbacks, without public and Council input, Section 25 -2. 5. Theme parks, which can be huge creators of need for public infrastructure and huge users of the same, and are or will be large commercial operations like a resort, must not be left exclusive to the Mayor and his appointees, without public and Council input, particularly on agricultural and residential land. Sections 25- 1- 5(b)(8) and 25- 2- 6(a)(7), (Already, private investors are seeking benefits of a motor speedway theme park in North Kona via the Mayor and State legislation, without public or Council input.) 6. Property owners affected by the County (i.e. the Mayor or his appointees) initiating zoning change should get actual notice as they have in the past, not constructive' notice they may never get in some unidentified publication. Section 25- 2- 43(c). 7. Surprisingly, draft four of Bill 250 attempts to (illegally in my opinion) take away a landowner's right to make a contract (deed restriction) for the landowners own property if it is agricultural land. This would likely end up in Court at some time. Doesn't Section 25- 5 -72(fl try to invalidate such things as height restrictions, restrictions on multiple housing, noxious (e.g. roosters, pigs, etc.) use, etc. in some of the Big Island's better subdivisions, which happen to be on agricultural land, like Keaolani (Maryl), Wakii Ranch, and Kohala Estates? Perhaps the Mayor is trying to serve those who want to condominiumize agricultural land with "farm dwellings" and "ohana" which have covenants restricting use to agricultural and single family residence. But this could really destroy upscale ( "gentlemen estates ") development. 8. In section 25 -2 -65, etc., the word "may" should be substituted for the word "shall". The use of "shall" probably is just a typographical error, unless the drafters of draft four of Bill 250 intended that the Planning Commission have no discretion at all to deny or amend a use permit application or special permit. This could generate a lot of litigation too, from applicants who claim their applications meet or are close enough to required conditions, and the Planning Department has no choice but to give them a permit. The drafters of the bill could not possibly mean that. ' ON OT: ZT 66, 9T E3� -33T96,, -- : : QI . 9. Particularly obnoxious in draft four is the disallowance of public input by way of a contested case hearing for all Planning Commission use permit applications while draft four attempts to transfer nearly every important land use function to the Planning Commission as a use permit proceeding Section 25- 2- 63(a). You may have noticed that nearly all of the matters discussed above involve activities that the public in West Hawaii objected to and tangled with in the past, and if left as is in draft four of Bill 250 would serve the developers so as to allow those previously objected to activities. Perhaps that is why so many people in West Hawaii feel the new zoning code may have been intended by the Mayor to overcome the best interests of the public in West Hawaii. I can say with certainty that responsible developers are not adversely affected in this matter. It is instead a political issue by which the Mayor is trying to strip the Council of significant land use power, and East Hawaii is attempting to philosophically overcome West Hawaii. I hope reason and goodwill can prevail and more litigation be avoided. Sincerely, VAN PER S ITH & VANCIL N PER 1 41K 'VA MVP /vmp �� T96� 8O�:QI -, - ,TO'ON ZT:ZT 66,9T 83�