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Home My WebLink AboutCOM 0088.037 1998-2000 a Stephen K. Yamashiro ": ��G;;.%�; Richard Wurdeman Mayor - -_ Corporation Counsel r . Guilty of c411/1Taii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Bewail 96720-4262 • (808) 961 -8251 • Fax (808) 961 -8622 February 24, 1999 cD co Chairman James Arakaki and 2 Members of the Hawaii County Council — 1 Gfl J County of Hawaii _ 25 Aupuni Street Hilo, Hawaii 96720 r1 cr= Alan Konishi County Clerk 25 Aupuni Street Hilo, Hawaii 96720 Dear Chairman Arakaki, Councilmembers and Mr. Konishi: Re: Draft 4 of Bill 250 (Zoning Code) This is to comment on the letter which Ms. Judith Graham sent to Council Chair James Arakaki and County Clerk Al Konishi.on February 16, 1999. In that letter, she makes some statements about the procedure being followed by the Council to ratify the Zoning Code. It is the opinion of this office that the procedure is appropriate and does not contravene the Court's order of December 21, 1998. The Court's order of December 21, 1998 was not detailed in its explanation of what action was to be taken. After stating in its Conclusions of Law that the actions taken by the Council after Draft 4 are "voidable," it stated that a voidable act may be subsequently ratified or confirmed. The order simply stated: Comm. No. 32. 3 / '7 File No Nc C/ 2 -NG Presented f Ref. To: n fr., MAR 51999 0 0 Chairman James Arakaki and Councilmembers Alan Konishi, County Clerk February 24, 1999 Page 2 Bill 250 (Draft 4) shall be referred back to the County Council for ratification. Bill 250 (Draft 4) shall be formatted in the Ramseyer format to show changes from the existing code. Bill 250 shall become void on September 1, 1999 unless ratified. The Court has consistently declined to be more specific in its description of the process of ratification. It has stated that the Council is to seek guidance from the Corporation Counsel's office with regard to the proper procedure. Ms. Graham indicates in her letter that the Court, by speaking of starting with Draft 8 as a "new bill," specified that the Council could not introduce Draft 4 and then amend it with Draft 8. No such thing was ever said. It must be remembered that the Court found fault with the original law because it was passed without adequate notice to the public of what was being done. The well - established rule is that where a governing body takes an otherwise proper action later invalidated for procedural reasons only, that body may retrace its steps and remedy the defect by re- enactment with the proper formalities. Henry v. Town of Oakville, 633 P.2d 892 (Wash. App. 1981); Harris v. City of Reno, 401 P.2d 678 (Nev. 1965). In the present case, there was no finding that the code was invalid because of any reason other than the procedural violations of the "Sunshine Law." Therefore, if the bill is amended in a proper fashion, and adequate notice is given to the public, then the Zoning Code that was passed in 1996 may be passed in 1999. In Bale v. City of Auburn, 941 P.2d 671 (Wash. App. 1997), a municipal legislative body passed ordinances in 1988, but failed to give proper publication of the ordinances, contrary to statute. In 1994, the municipality then re- enacted the ordinance which had not complied with the statute. When challenged in court, the ordinance was ruled valid, because it was ratified by its re- enactment. See also LaRose v. King County , 584 P.2d 393 ( Wash. App. 1978). As a second ground of complaint, Ms. Graham says that there are "insurmountable difficulties" presented by two drafts of a bill along with an explanatory letter. She notes that the entire thing consists of "over 300 pages of interlined technical text." The form of the bill is dictated by the Court's order, which required that Draft 4 be put into Ramseyer format showing the differences to the pre -1996 code. In fact, one of Plaintiffs' 0 0 Chairman James Arakaki and Councilmembers Alan Konishi, County Clerk February 24, 1999 Page 3 contentions during the trial was that the original bill was defective because it was not in Ramseyer format, thereby misleading people. It is now in the format that the Plaintiffs' wanted it to be in all along. Ms. Graham also contends that Draft 4 is an express repeal of the former code, while Draft 9 is an "amending bill," and that therefore Draft 9 is contrary to §3 -10(d) of the Hawaii County Charter, which provides that a bill may not be amended to change its original purpose. The title of both bills is the same: "An Ordinance Amending Chapter 25 of the Hawaii County Code Relating to Zoning." Both Draft 4 and Draft 9 accomplish the same purpose, which is the removal of major parts of the previous code and its replacement with the new code. Thus, the purpose of Draft 4, which Judith Graham characterizes as an "express repeal," is actually not to simply repeal the old zoning code, but to replace it with a new code, which is the same purpose as an amendment. Furthermore, it may also be argued that a repeal is a form of an amendment: The distinction between repeal and amendment, as these terms are used by the courts, is arbitrary and is based largely on legislative usage. When a section is added to an act or a provision added to a section, the legislature commonly entitle the act an amendment.... When a provision is withdrawn from a section, the legislatures call the act an amendment particularly when a provision is added to replace the one withdrawn. However when an entire act or section is abrogated and no new section is added to replace it, legislature label the act accomplishing this result a repeal. [Emphasis in original.] 1A Sutherland Stat Const. §23.02. While Judith Graham states that the ratification of Draft 4 is not a workable alternative, it is a starting point for the ratification of the zoning code which was passed in 1996. As noted above, if the laws regarding notice are followed and the public is given adequate information of the changes made, then the code may be ratified. Ms. Graham's final objection is that "drafts four and nine contain some illegal or probably illegal provisions that the Council will want to review." Of the changes she 0 0 Chairman James Arakaki and Councilmembers Alan Konishi, County Clerk February 24, 1999 Page 4 cites, none have yet to be held to be in violation of any law. The question of whether or not any one of these are supposedly illegal is not in and of itself a reason not to ratify the code. The issue of telecommunications towers is still in various stages of litigation and appeal. It will be resolved, but there is still a presumption that the wording of the code is valid. The complaint is also raised that §25- 2 -63(a) disallows a contested case hearing when the planning commission considers a use permit. As Ms. Graham's letter points out, this has been rendered invalid by the charter amendment that passed in November of 1998. The charter amendment would have rendered any existing law invalid. It states that it takes effect in March of 1999; therefore, the planning commission and the board of appeals must follow the charter provision in March no matter what the ordinance states. An ordinance must be subordinate to the charter, and therefore the charter provision takes precedence over a conflicting ordinance. Fasi v. City Council, 72 Haw. 513 (1992); 5 McQuillin, Municipal Corporations, §15.19. There is also a complaint about § §25- 5- 72(c), 25 -5 -142, and 25 -5 -152 allowing permits for heliports in certain districts, stating that this "defeats the intent" of HRS 343 - 5(a)(8), which states that an environmental assessment is required for the proposed construction of new or modified helicopter facilities which may effect any land classified as conservation district, or historic sites, or the shoreline area. This contention is not valid. Section 25- 5 -72(c) allows heliports in lands zoned agricultural, and a special permit must be obtained if the land in question is in the State Land Use Agricultural district. Section 25 -5 -142 allows heliports in limited industrial (ML) zones without any type of permit, while §25 -5 -152 allows heliports in general industrial (MG) districts without any type of permit. None of these ordinances interfere with the requirement of an environmental assessment pursuant to HRS Chapter 343. The statute is a separate requirement which exists on its own, and is triggered on its own. The wording of the County Code cannot "defeat the purpose of a statute. Finally, the letter cites the case of Waianae Neighborhood Board v. Land Use Commission, 64 Haw. 265 (1982) as authority for its contention that code Sections 25-1 - (b)(8) and 25- 2- 61(a)(7) are contrary to law in that they allow theme and amusement 0 o Chairman James Arakaki and Councilmembers Alan Konishi, County Clerk February 24, 1999 Page 5 parks in agricultural areas with a use or special permit. This is not entirely accurate. Section 25- 2- 61(a)(7) allows theme and amusement parks in a number of different zones if a use permit is obtained, including residential, industrial and commercial, as well as agricultural. The Waianae case should be limited to its facts. The Court concluded that in that particular case, the proposed project was not an "unusual and reasonable use" under HRS §205 -6, and that the applicants for a special permit should have instead attempted to get the land in question changed from an Agricultural designation under the Land Use law to an Urban designation. It did not address the situation of whether such a use was permitted by the county code. That case should be seen as an interpretation of the statutory law concerning the special permit pursuant to HRS §205 -6, and the limitations of uses on lands with a Land Use designation of Agricultural and not as a black letter ban on theme and amusement parks on land that the County has zoned as agricultural (A) as well as in other zones, with a use permit. Ms. Graham's contention that this fatally flaws the drafts of the zoning code is overbroad. Please contact this office if there are any questions. Sincerely, RICHARD D. WURDEMAN Corpor 'on Coun e/ • By , FREDERICK GIANNINI Deputy Corporation Counsel FG:ch comm2: a/ArakakiBill25OZonmg.ltr