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Home My WebLink AboutCOM 0088.022 1998-2000 v'Kn (,c/ vii c. • _ ( .... T -w January 15, 1999 draft Viewpoint LET THERE BE SUNSHINE "Jerry Rothstein & Judy Graham. vs. County of Hawaii & Hawaii County Council" (Civil 97 -028K) is a landmark Sunshine law case decided by Judge Ronald lbarra in Third Circuit Court in Kealakekua. It challenged the action of the cafe 1996 County Council which, as its fmal action before six of nine of its members left office, passed draft 8 of Bill 250. It is a 165 -page document originating from the Yamashiro administration that comprehensively amended the Hawaii County Zoning Code. It was adopted December 7, 1996 as Ordinance 96 -160. Several Sunshine law violations occurred in its passage. The Council processed five drafts in nine days without providing public notice as required by 4 ,p law. Some of the drafts had major substantive changes:.Drafts listed on the agenda ` l o C I were replaced by drafts not shown on the agenda. The substitute drafts were not available to the public in advance. None of the drafts were marked to show 1 changes from the existing zoning code by underlining additions and bracketing deletions (called "Ramsayering "). Only the title of the bill was indicated on public notices and agendas and did not convey any information to inform the public of the substance of the bill. Substantive amendments were made from the floor and passed without proper notice. The action taken by the Council was a major revision of the entire zoning code contrary to the stated purpose to "eliminate duplications and conflicts with other parts of the code and state law." After nearly two years of litigation, Judge lbarra found that there was "clear and convincing evidence" that the Hawaii County Council "knew the requirements O,�1 ue-He of the Sunshine Law... and 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." Q Comm. No. " 2 - 2 2 - File No. 14 cc /'ZN G Presented Pc Ref. To: Ref. Date JAN 15 t999 0 0 The Court concluded that the '96 Hawaii County Council was in "wilful violation" of the Hawaii State Sunshine Law when it passed the zoning code and ordered Bill 250 be (a) "referred back to the Council for ratification," (b) "formatted in the Ramsayer format to show changes from the existing code," and (c) "become void on Sept.1, 1999 unless ratified." The Court in effect put an end to past County Councils' practices of inadequate public notice of items on the agenda and making substantive amendments to bills at Council meetings without adequate public notice. The Court further determined that all zoning and other actions based on the defective code are "voidable" but not void. The zoning code that passed in V et D PA Ie violation of the Sunshine Law remains in effect until such time as a new zoning code is passed prior to Sept.1, 1999. The Court did not invalidate any action of the Planning Dept. or the Council. That would require further action by the Court. The message from the Court is loud and clear: "Let there be sunshine." Our newly elected 1999 County Council has taken the Court's decision to heart and is unlikely to follow in the steps of previous Councils by engaging in practices that place its actions in jeopardy. ,— The Council's responsibility is not to rush through and merely re- S adopt the present zoning code. Rather it is for this new Council to carefully and W .� comprehensively review the entire Bill 250 in Committee and hold public hearings as needed before it goes to the Council for adoption. The forthcoming Hawaii County Zoning Code should be based on the work of the `99 Council done in the light, rather than the work of the '96 Council done in the dark. Both the substance _ of the zoning code, and the process by which it is adopted, are essential to the passage of the Hawaii County Zoning Code. a 0 c Seven of the nine current councilpersons were not on the `96 Council that improperly passed the present zoning code. Three of the nine were newly elected in 1998. It is unlikely that any of the present Council members are fully aware of the contents of the present zoning code except possibly Councilpersons Arakaki and Smith who are the only remaining members of the Council that adopted Bill 250 in 1996. (Brian De Lima, Keola Childs, Taka Domingo and Wayne Easley also voted for it. John Ray, Elroy Osorio, and Lloyd Van De Car voted against it.) r The Court's remand of Bill 250 provides a valuable opportunity for the Council to do a comprehensive review of the entire zoning code using as much time as needed for passage by Sept.1. Not only will this allow the public the opportunity it didn't have to identify and evaluate major changes from the old zoning code when it was processed by the `96 Council, it will also allow the new Council, to better understand its complex provisions and the major changes it enacted in the dark. Ten (10) such major changes include: ✓- limiting the Council from setting conditions on development; - eliminating contested case hearings in certain matters; - overriding restrictive covenants; transferring certain land use powers, including shoreline setback, from the Council to the administration; ✓- allowing 100' height limits for agricultural structures in Ag5 at the discretion of the Planning Director; allowing 500' telecommunication towers in residential districts with a permit, and in all agricultural areas without a permit; /- allowing the Planning Director to grant more exceptions to the 45' height limit; ✓- eliminating the "Unplanned" District and absorbing it into the Ag 5 District; - disturbing historic sites without a permit on 1 and 5 acre Ag lands; - requiring that use permits be granted if certain new conditions are met; 3 O O It would be unfortunate if the Council chose to forego a comprehensive review and amending of Bill 250, and instead chose to do a cursory review and quick adoption, relying on the fruit of the `96 Council grown in the dark. The Yamashiro administration, through the advice of Corp. Counsel Richard Wurdeman, seeks a quick ratification of the current zoning code on the grounds that to do otherwise would disrupt the orderly administration of the planning process in this County. Quick approval or dire consequences are wrongly posed as the alternatives. "Pass it now and amend it later" is as unlikely a scenario now as it was in `96 when Council Chair De Lima made a similar statement in passing Bill 250. Amend it properly now because it is unlikely to be done later. Which do you the public want? The people of Hawaii won the right to Sunshine. Use it, or lose it! - Call your councilperson and ask for a comprehensive review instead of a cursory review & quick adoption of Bill 250. - Ask the Council to provide a summary list of all but the minor changes from the former code. - Review the changes in the draft zoning code in every library on Hawaiiisland and Planning Dept. and County Council offices in Kona and Hilo. - Have your community organization form a committee to study the draft. - Support amendments that are beneficial and object to those that are not by writing or calling your councilperson and/or attending Planning Committee /County Council meetings. - Watch Planning Committee /Council meetings as they appear on public access TV. Call Na Leo at 935 -8874 for the Hilo and Kona schedule. - Ask your councilperson for a "zoning code meetin " in your district. r7(s, 2/2 747 7 C r-A"