HomeMy WebLinkAboutCOM 0088.039 1998-2000 t _
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Tree CIRCUIT COUNT
STATE OF cc: Jerry D. Rothstein, pro se
Judith W. Graham, pro se SS DEC M fliO
Frederick Qisnnini EM. �..
LINfJALANI K. SUCK HEW
CLERK
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
JERRY D. ROTHSTSN, et al. ) Civil No. 97-028K
(Kona)
Plaintiffs, )
FINDINGS OF FACT,
vs. ) CONCLUSION OF LAW
AND ORDER
COUNTY OF HAWAII, et al. ) »� 11 y b e ' fis4.' one
1 hereby cattily That 11, to a nd_
Defendants. ) owed copy of fns c:l•; :'c7 a:
a `a 1 Kim± rt
th,. fleas
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND ORDER
A jury waived trial in this matter commenced on November 3, 1998 at nine o'clock
before the Honorable Ronald lbarra and concluded the same day. Jerry D. Rothstein and Judith
W. Graham appeared pro se, and Deputy Corporation Counsel Frederick Giannini appeared for
the Defendant County of Hawaii.
Appearing as Plaintiffs' witnesses were Donald Ikeda, Kevin Dayton, John Ray, Lloyd
Van De Car, Keith Burley, James Albertini, John Broussard, Duane Erway, Virginia Towle,
William Graham, Jerry D. Rothstein and Judith W. Graham. Appearing as Defendant's witness
was Brian DeLima, Esq.
The Court, having considered the record herein, the stipulations made by the appearing
parties, the evidence in the form of exhibits and testimony, and the representations and
arguments of the appearing parties through themselves or through their attorney, hereby makes
Ceram. No. 22.39
File No. N cc ANC.
Ref. To: Co t ni C i
Ref. Date MAR 9 1999
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the following Findings of Fact and Conclusloa:: of Law.
F11C-5 OF FAC" t'
To the extent that any Findings of Fact shall be determined to be Conclusions of Law,
they shall be deemed as such.
1. By Stipulation dated October 29, 1998, the parties stipulated to Plaintiffs' Exhibits 5,
6, 8, 16, 18, 20, 23 26,, 27, 29, 31, 33, 36, 37, 39, 41, 46, 47, 53, 61 and 62.
2. By further oral agreement in Court on November 3,1998, the parties stipulated to
Plaintiffs' Exhibit 48.
3. In June 1995 the Hawaii County Planning Commission (hereinafter referred to as
"Commission") first considered a revision of Chapter 25, the Hawaii County Zoning Code.
Defendant's Exhibit 16 at 3.
4. The revision was initiated by the Hawaii County Planning Department (hereinafter
referred to as "Planning Department).
5. For its meeting of June 22, 1995, the Commission agendized the revision as:
A bill initiated by the Planning Director, which proposes comprehensive amendments to
Chapter 25 (Zoning Code) of the Hawaii County Code. Specific amendments are
contained in Zoning Cale Revision - Draft 4/28/95..
6. The Defendant County of Hawaii admits that the revision contained amendments that
were substantive and were not of a housekeeping or merely technical natures Defendant County
of Hawaii's Answer to Amended Complains, March 24, 1997, at 2, paragraph 2. Plaintiffs'
Amended Complaint, March 11, 1997 at 3, paragraph 13.
7. The draft prepared by the Planning Department was marked by underscoring and
brackets known as the Ramsayer Format to show the proposed amendments to the existing code.
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Plaintiffs' Exhibit 5.
8. The measure was transmitted from the Commission through the Mayor to the County
Council on March 29, 1996, and became Bill 250. Plaintiffs' Exhibit 11 at 1.
9. The Hawaii County Council's Committee on Planning (hereinafter referred to as "the
Committee') considered Bill 250 at meetings through October 30,1996. Plaintiffs' Exhibits 11,
16, and 18.
10. On September 17, 1996, the Committee ageadiad sill 250 in main part as;
"ORDINANCE BILL AMENDING CHAPTER 25 OF THE HAWAII COUNTY CODE
RELATING TO REVISIONS TO THE ZONING CODE" Plaintiffs' Exhibit 1.1 at 1.
11. There is no evidence that any agenda item of the Commission or the Committee more
specifically conveyed the substance of the measure to the public.
12. The meetings of the Commission and the Committee attracted limited public
participation. Plaintiffs' Exhibit 16 at 70-77. Plaintiffs' Rahihit 18 at 2. Plaintiffs' Exhibit 27 at
46. Plaintiffs' Exhibit 39 at 22 and 40. Testimony of John Broussard.
13. Effective with Draft 2 dated September 1996, the underscoring and brackets that the
Planning Department had included in Draft 1, to show changes from the existing code, were
removed. Plaintiffs' Exhibit 20.
14. On October 16, 1996, the Committee voted to adopted Draft Z which amended the
bill to become an express repeal. Plaintiffs' Exhibit 16 at 126; Plaintiffs' Exhibit 20 at 1.
15. The Hawaii County Council (hereinafter referred to as "the Council") considered Bill
250 at fun and second reading on November 13 and November 27, 1996, and held public
hearings on the matter on November 12, 19%, in Hilo, and on November 18, 1996, in Kona.
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Plaintiffs' Exhibit 1; Testimony of Donald Ikoda.
16. In November 1996, the members of the Council were James &skald, Keola Childs,
Brian DeLima (Chair), Wayne Easley, Takashi Domingo, Elroy Osorio, John Ray, Al Smith and
Lloyd Van De Car.
17. In November 1996, the County Cleric of the County Council was Donald Ikeda.
Testimony of Donald Ikeda.
18. The agenda items for the public hearings and first reading of the bill stated in main
part "Bill 250 (Draft 4): Amends Chapter 25 of the Hawaii County Code relating to Zoning."
Plaintiffs' Exhibits 26,19, and 36.
19. The agenda item for second reading of the bill stated in main part "Bill 250 (Draft
6): Amends Chapter 25 of the Hawaii County Code relating to Zoning." Plaintiffs' Exhibit 46 at
4.
20. Kevin Dayton (hereinafter referred to as "Dayton") is presently a reporter with the
Honolulu Advertiser reporting on state government. In November 1996, he was a reporter with
the Hawaii Tribune Herald reporting on county government Testimony of Kevin Dayton.
21. On November 10, 1996, the Hawaii Tribune Hesnld published an article by Dayton
concerning the zoning code revision that mentioned several specific changes to the existing code.
Testimony of Kevin Dayton.
22. Among the changes reported was a proposal to no longer require use permits for golf
courses on agricultural lands in the County and proposal to delete a county environmental impact
statement requirement. Testimony of Kevin Dayton.
23. Public turnout at the Council bearings and meetings was approximately 50 people
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r • i I:LL ' s9 t) "19 l.U` -i-t.L r.�✓ trLL.. .00• _ -_- ..tea
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attending on November 12, 1996; more than 20 testifying on bill 250 on November 13, 1996;
approximately 150 people attending on November 18, 1996; and more than 20 people testifying
on Bill 250 on November 21, 1996. Plaintiff? Exhibit 27 at 1; Plaintiffs' Exhibit 37 at 4394-
4395; Plaintiffs' Exhibit 39 at 1; Plaintiffs' Exhibit 48 a 4514 -4515.
24. On November 21, 1996, two council members acknowledged on the record that there
was distrust and confbsion over the proposed changes to the zoning code and that the overriding
message was that the public did not want this bill passed at this time. Testimony of Lloyd Van
Dr Car; Plaintiffs' Exhibit 48 at 4577, 4579.
25. On November 21, j996, the Council adopted Bill 250 Theft 7 as amended (Draft 8) by
a 6-3 vote. Plaintiffs' Exhibit 48 at 4584; Plaintiffs' Exhibit 53 at 166.
26. On February 11, 1998, this Court fpund that the agendas containing merely the title
of the Bill and the draft number do not comply with Hawaii Revised Statutes Section 92 -7.
Order Granting in Part and Denying in Part Plaintiffs' Second Motion for Partial Summary
Judgment
27. The agenda item for Bill 250, enacted as Ordinance 96 -160, did not contain any
information that would inform the general public of the substance of Bill 250 before the Council.
28. Members of the Council understood that compliance with the Sunshine Law [Chapter
92, Haw. Rev. Stat] was required. Plaintiffs' xChibit 18 at 61-62; Testimony of Brian Del-ions,
Esq; Testimony of Lloyd Van De Car.
29. The County Clerk and County Council Chair approved the wording of the agenda
item concerning Bill 250 for the meetings of November 13 and 21, 1996. Testimony of Donald
Ikeda; Testimony of Brian DeLima; Plaintiffs' Exhibit 58 at 2.
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30. Various members of the Council knew in advance that the bill contained substantive
provisions to abolish the Unplanned District, add an Agricultural Project District, delete use
permit requirements for golf courses on agricultural lands, provide for commercial theme and
amusement parks on agricultural lands with a use permit or special permit, provide for forty -
room lodges on agricultural lands, and other manures. Plaintiff' Exhibit 16 at 85 -86; Plaintiffs
Exhibit 18 at 46-47; Plaintiffs' Exhibit 37 at 9, 41; Plaintiffs' Exhibit 39 at 19-22, 47.
31. The agenda items referred the public to drafts that some among the public consulted.
Plaintiffs' Exhibit 37 Attachment A at 19; Plaintiffs' Exhibit 39 Attachment A at 15, 27, 37, and
48.
32. The drafts indicated were each approximately 165 pages long. Plaintiffs' Exhibits 23
and 33.
33. Draft 6 was a clean draft of the proposed new zoning code. Plaintiffs' Exhibit 33.
34. Draft 4 was marked to indicate the changes ftom the previous draft but not the
changes to the existing zoning code that had appeared in he Planning Department's draft.
Plaintiffs' Exhibit 5 and 23; Testimony of Kevin Dayton.
35. A clean draft of the proposed zoning code could not be tracked against the former
zoning code because the revision had changed the order and structure of the code. Testimony of
Kevin Dayton.
36. On October 16, 1994 Planning Department consultant Sandra Schutte advised the
Committee on Planning that a draft would have to be put out for the public and that the public
would not like to see an unmarked draft. Schutte asked whether the Committee on Planning
would like to see Bill 250 put back in the Ramsayer Format (marked) or whether the Committee
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on Planning would like to see a repeal and a clean draft. Plaintiffs' Exhibit 16 at 124.
37. The Committee on Planting chose to see a repeal and a cksn draft of Bill 250.
38. During Council meetings in November 1996 the Council received in public
testimony twenty -seven requests to defer the bill expressed in various ways and often as " defer."
Plaintiffs' Exhibit 27 at 11, 13, 33, 45, and 75; Plaintiffs' Exhibit 37 Attachment A at 6-7, 34;
Plaintiffs' Exhibit 39 at 9, 20, 24, 27, 29, 35, 38 and 50; Plaintiffs' Exhibit 48 Attachment A at 1,
5 -6, 9, 10, 11,14 -15, 25, 29, 36, 38 and 45. Plaintiffs' Exhibit 49.
39. With some overlap with the findings above, at the council meetings the Council
received In testimony eighteen statements to the effect that that had no been enough opportunity
for public input on Bill 250 and/or that the public wanted mama opportunity for public input.
Plaintiffs' Exhibit 37 Attachment A at 6, 34, and 40; Plaintiffs' Exhibit 39 at 9, 22, 24, 27 -28.
30, 32, and 38; Plaintiffs' Exhibit 48 Attachment A at 5, 11, 13, 14, 25, 29, 39 and 45.
40. On November 13, 1996, the Council heard testimony from three members of the
public who said that they had not received adequate notice on gill 250. Plaintiffs' Exhibit 37
Attachment A at 12, 17, and 18 -19.
41. On November 18, 1996, among the above, the County Council heard in testimony, "1
respectfully request that the Council defer action until I and hundreds of others like me can study
the proposed revisions and learn how they will affect people li me. I simply don't know
what's in the final proposal, and in spite of my good faith efforts to find out" Testimony of
Duane Erway.
42. On November 21, 1996, Councilman Ray moved to defier the bill in part to provide
information to the public, i.e., to have prepared a document summarizing the changes to the
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existing code and to have this distributed with the draft and time for review. Testimony of John
Ray; Plaintiffs' Exhibit 48 at 4576.4578.
43. The Council turned down the motion on a 6-3 vote. Plaintiffs' Exhibit 48 at 4583;
Plaintiffs' Exhibit 51 (video).
44. Bill 250 repealed the existing zoning code and added a new Chapter 25.
45. Following first reading, the County certified by legal notice published on November
18, 1996, in West liamaalgslay. that the bill had passed first reading and that it repealed the
current Chapter 25 of the County Code and added a new chapter. Plaintiffs' Exhibit 41;
Testimony of Donald Ikeda.
46. The agenda item did not We that Bill 250 was a repeal.
47. The Committee is required by Council Rules of Procedure to prepare a report and
adopt findings of fact with respect to matters it considers. Testimony of Donald Ikeda;
Plaintiffs' Exhibit 62 at 19.
48. Committee Report 168 concerning Bill 250 was adopted and transmitted to the
Council along with the bill. Testimony of Lloyd Van De Can Plaintiffs' Exhibit 22.
49. The Council approved and adopted the report, as was required. Testimony of Donald
Ikeda; Plaintiff' Exhibit 62 at 20; Plaintiffs' Exhibit 38.
SO. Report 168 stated that the purpose of Bill 250 was to "eliminate any duplication aid
conflicts with other parts of the code and with the state statutes." Plaintiffs' Exhibit 22 at 1.
51. Although the report so stated, the bill was something far different and was a
sweeping change in County zoning. Testimony of Lloyd Van De Car.
52. Members of the public who had been aware that a revision of the code was underway
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had believed it to be technical in nature, "s2 a emlining" or umderosken to confomm the County
Code to State law. Testimony of Judith Graham; Testimony of Bill Graham; Testimony of
James Albettini; Plaintiffs' Exhibit 37 Attachment A at 2.
53. The understanding of these citizens was consistent with the agenda item.
54. liaw. Rev. Stat. Sec. 92 -7 provides:
No board shall change the agenda, once filed, by adding items thereto without a
two-thirds recorded vote of all members to which the board is entitled; provided
that no item shall be added to the agenda if it is of reasonably major importance
and action thereon by the board will affect a significant number of persons. Items
of reasonably major importance not decided at a scheduled meeting shall be
considered only at a meeting continued to a reasonable day and time.
55. The agenda item for the meeting of November 13, 1996, was Bill 250 Draft 4.
Plaintiffs' Exhibit 29.
56. After public testimony was received a previously typed Draft 5 was introduced as an
amendment Exhibit 37 at 4398.
57. Draft 5 included amendments at numerous places to require a use permit for golf
courses and related golf uses. Plaintiffs' Exhibit 37 at 4415; Plaintiffs' Exhibit 31 at 77, 80, 84,
87, 90, 95. 99, 109, 116, 120 and 134.
58. Draft 4 of Bill 250 had treated golf courses as a permitted use that did not require a
permit. Plaintiffs' Exhibit 23 at 75, 78, 81, 85, 88, 92, 96, 105. 112. 116 and 131.
59. To grant a use permit the Commission must hold a public bearing, find consistency
with the zoning district and the General Plan, and find no substantial adverse impacts and no
unreasonable burden on infrastructure. Plaintiffs' Exhibit 31 at 39 and 40.
60. Draft 5 included an amendment applicable to the Agricultural District, not found in
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Draft 4, that authorized the Planning Diretrc_ to permit by plan approval building heights to 100
feet for non - residential agricultural structures, superseding the 45 -foot height limit for the
district. Plaintiffs' Exhibit 31 at 101, Section 25 -5 -73; Testimony of Judith Graham.
61. Draft 5 changed the minimum land area required for the Agricultural Project District
from two to five acres. Plaintiffs' Exhibit 31 at 156.
62. Administration consultant Sandra Schutte stated on the record that the change from
two to five acres was very significant. Plaintiffs' Exhibit 37 at 4420.
63. The Agricultural Project District itself was a concept new to this version of the
zoning code. Plaintiffs' Exhibit 23 at 152 -157.
64. The agenda item for the meeting of November 21, 1996, was Bill 250 Draft 6.
Plaintiffs' Exhibit 46 at 4.
65. At the meeting a previously typed Draft 7 was introduced as an amendment
Plaintiff's' Exhibit 48 at 4554; Plaintiffs' Exhibit 47.
66. The former zoning code had allowed in all districts yacht harbors and boating
facilities and other large major recreational uses including accessory uses that are an integral part
of the major recreational aspect, which tC uses, may be of a commercial or non- noxious
industrial nature. Plaintiffs' Exhibit 61 at 784, Section 25-28(aX6).
67. Draft 7 contained an amendment that allowed, in the Open District with a use permit,
yacht harbors and boating facilities without restriction on the commercial nature of the far; stirs
Plaintiffs' Exhibit 47 at 131.
68. The majority of the coastline of the county lies in the Open District Ord. 89 -142
(General Plan), LUPAO maps.
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69. By definition commercial boding facilities may include resort marinas.
70. The amendment had the effect of transferring authority from the elected County
Council to the appointed Planning Commission. Testimony of Bill Graham.
71. Draft 7 changed the definition of a " family" from eight to five unrelated persons.
Plaintiffs' Exhibit 48 at 4555; Plaintiffs' Exhibit 47 at 7.
72. The "fl,mily" definition constrains the occupancy allowed in single- family dwellings
in the Single Family Residential District. Plaintiffs' Exhibit 47 at 75, Section 25- 5- 3(aX5);
Plaintiffs' Exhibit 39 at 5-6.
73. Following an election on November 5, 1996, a newly constituted County Council
with six new members was scheduled to take office at the start of December 1996. Testimony of
Donald Ikeda. Plaintiffs' Exhibit 14; Plaintiffs' Exhibit 48 at 4577.
74. The current council members intended to complete the process on Bill 250 before
their term expired. Plaintiffs' Exhibit 16 at 123; Plaintiffs' Exhibit 18 at 60 and 62; Plaintiffi'
Exhibit 48 at 4578 -4584 and Appendix "A" at 12.
75. The Council Chair believed that a majority of the Council felt that it would have been
a dereliction of their duty to have not completed this important ask, to leave it to a new group of
members who had recently been elected. Testimony of Brian Dei.ima
76. The County Council normally meets on the first and third Wednesdays of the month.
Testimony of Donald Ikeda
77. The County Council's meeting of November 13, 1996, concerning Bill 250 was an
additional "special" meeting and the meeting of November 21, 1996 was a rescheduled regular
meeting held on a Thursday. Testimony of Donald Ikeda; Plaintiff~:' Exhibit 14; Plaintiffs'
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Exhibit 24.
78. As of November 21, 1996, no father meetings of the that constituted County
Council had been scheduled.
79. At the two meetings in November 1996, the County Council considered five drafts of
Bill 250, being Drafts 4 through 8. Plaintiffs' Exhibit 29 at 2 (agenda). Plaintiffs' Exhibit 46 at 4
(agenda). Exhibit 63 at 166 (ordinance).
80. The County Council received warnings from the public rsgnding the substitute
drafts with substantive changes.
81. On November 13. 1996, Henry Ross, a member of the public warned the Council that
if substantive changes were included in Draft 5, which had not been ageadized and was being
considered, the Council would be in wilful violation of Haw. Rev. Stat Section 92 -7. Testimony
of James Albertini: Exhibit 37 Attachment A at 1 -5.
82. On November 18 and 21 respectively, Plaintiffs Graham and Rothstein alleged
potential or actual Sunshine Law violations. Testimony of Judith Graham: Testimony of Jerry
Rothstein: Plaintiffs' Exhibit 48 Attachment A at 25 -26.
83. Prior to the meeting of November 21, 1996, Common Cause Hawaii provided written
testimony, Communication 1 100. 113, that there seemed to be several violations of the Sunshine
Law in regard to the availability of documents before the meetings. Plaintiffs' Exhibit 50.
84. On November 21, 1996, this written testimony was read into the record. Testimony
of John Broussard. Plaintiffs' Exhibit 48 Attachment A at 1.
85. For the meeting of November 21, 1996, the Big Island Rainforest Action Group
submitted written testimony, Communication 1100. 111, advising that for the County Council to
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proceed with a final vote on the bill would be a MLitt' violation of the Sunshine Law. Plaintiffs'
Exhibit 49; Testimony of James Albettini.
86. The Chair acknowledged receipt of the communication Lion at the meting. Plaintiffs'
Exhibit 48 Attachment A at 44.
87. The County Council did not consult the Corporation Counsel with respect to these
warnings.
88. The County Council did not evidence a reluctance to make amendments based on
grounds of substantiality.
89. At the meeting of November 21, 1996, the County Council first voted to reject, and
then voted to accept, the amendment to allow commercial boating facilities with a use permit
Plaintiffs' Exhibit 48 at 4572 -4573.
90. The extent of the shoreline affected, and the commercial nanny of the facilities, was
articulated during discussion. Plaintiffs' Exhibit 48 at 45724573.
91. At the meeting of November 13, 1996, Councilman De Lima offered an amendment
to extend the coverage of the County Zoning Code to Hawaiian Home Lands. Plaintiffs' Exhibit
37 at 4438.
92. The amendment received four favorable votes and did not pass. Plaintiffs' Exhibit
37 at 444546.
93. Hawaiian Homes Lands involve tens of thousands of acres in the County. Hawaiian
Homes Commission Act. Sec_ 203, subparagraph 1 (1993).
94. Explicit opportunities for remedial action were offered and rejected.
95. On November 21, 1996, Councilman Domingo moved for the passage of Bill 250
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• ' LEI. . •73 09:23 l.U'+- l.t - F3iu Otii- & k1) y.�:� - : .�o
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Draft 6 on second and final reading and Councilman Arakaki seconded. Plaintiffs' Exhibit 48 at
4554.
96. Councilman Domingo then moved to amend Bill 250 Draft 6 to Bill 250 Draft 7 as
circulated. Pla utiffi' Exhibit 48 at 4554.
97. Following discussion, Councilman Ray moved to "deSee' the bill and Cou
Van De Car seconded. Plaintiffs' Exhibit 48 at 4554.
98. Cotmcil members Osorio, Ray and Van De Car voted in favor of the motion.
Plaintiff? Exhibit 51 (video).
99. A recess was immediately called. Plaintiffs' Exhibit 51; Plaintiffs' Exhibit 48 at
4583.
100. The Hawaii County Charter Section 3 -10(d) provides that an amended bill shall be
"laid over" for at least one week upon a favorable vote of one -third of the membership.
101. Former Council Chair De Lima stated that, in acting upon the motion to defer-, he
was going under the interpretation of Robert's Rules of Order. Testimony of Brian DeLima.
102. The Defendant County of Hawaii has stated that Councilman Ray's motion to defer
was a motion made in accord with County Charter Section 3- 10(d). County's Memorandum in
Support of Motion for Judgment on Pleadings, dated April 17, 1997 at pp. 11 -12.
103. On November 21, 1996, after the recess Councilman Van De Car requested a public
hearing on Draft 7. Plaintiffs' Exhibit 48 at 4584; Testimony of Lloyd Van De Car.
104. Councilman Ray joined the request and understood his joinder as a second.
Plaintiffs' Exhibit 48 at 4584; Testimony of John Ray.
105. The Council's Rules of Procedure provide that a public hearing may be required by
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a one -third vote of the entire membership. 7:intiffi' Exhibit 62 at 29.
106. Cotmcilatan DeLima instead told the County Clerk to call the roll on the bill.
Plaintiffs' Exhibit 48 at 4584.
107. The minutes of the County Council meetings and public hearings were not available
to the public within thirty days. They were not available when plaintiffs filed their initial
complaint in February 1997. Minutes of public testimony at several meeting were not available
by September 1997. Testimony of Judith Graham.
CONCLUSIONS OF LAW
To the extent any of the following Conclusions of Law shall be determined to be Findings
of Fact, they shall be deemed as such.
1. This Court has jurisdiction over all the parties in this action and all the claims
presented therein
2. This Court has taken judicial notice of the Hawaii County Charter. -
3. The Plaintiffs do not have standing to pursue allegations in their Second Amended
Complaint concerning the County Charter as a cause of action.
4. The Hawaii County Council is required to adhere to the provisions of state statute
Including Chapter 92 of Haw. Rev. Stat.
5. Chapter 92 of Haw. Rev. Stat. is liberally construed in favor of public scrutiny and
participation.
6. The sunshine law should be construed liberally in favor of the public even though it
contains a penal provision. Wnlfenn v. Statr, 344 So. 2d 611, 612 (Fla. App. 1977); Matter of
Order Declaring Annexation. et , 637 P.2d 1270 (Okl. App. 1981), also citing Taman v,
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McCord, 432 S.W. 24 758 (1968).
7. For statutes denouncing actions not in themselves wrong, "wilful" denotes conduct
which is intentional, knowing or voluntary. Ala v. liamade. 66 Haw. 409, n. 8 (1983), citing
I Jnitcd Starts v 111innis Central. Railrogd Co., 58 S.Ct. 433, 303 U.S. 239, 242, 82 L.Ed. 773
(1938). United Stator v. Murdock. 290 U.S. 389, 394, 395, 54 5.0. 223, 225, 78 L.Ed. 381
(1933).
8. The standard of proof required for wilfiilness in this matter of social importance is
clear and convincing evidence. JCtijiya v. nerunem of Water Supply. Maui County, 2 Haw.
App. 221.226 (1981).
9. The County Council knew the requirements of Chapter 92 of Flaw. Rev. Stat. The
provisions of Chapter 92 of Haw. Rev. Star are interrelated. The notice provisions implement
Section 92 -1 of the Haw. Rev. Star which protects the public's tight to know.
10. The County Council overrode an outpouring of procedural allegations expressing the
public's attempt to 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.
11. Haw. Rev. Stat. Sec. 92 -11 provides: "Any final action taker in violation of Sections
92 -3 and 92 -7 shall be voidable upon proof of wilfitl violation."
12. The crucial test of sufficiency of a title is: Idiots the title tend to mislead or deceive
the people... as to the purpose or effect of the legislation, or to conceal obscure the same?"
Schnack v. City & County, 41 Haw. 219, 223 (1955).
13. On November 13 and 21, 1996, the County Council violated Haw. Rev. Stat. Sec. 92-
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7(d) when it discussed and adopted amendmcnts to Bill 250 that were of reasonably major
importance and could affect a significant number of people without publishing the substance of
the drafts in the agenda.
14. The violations were wi1Rt1 under the attendant circumstances including meritorious
warnings given in advance by the public and explicit oppordmities of remedy placed before the
Council, as well as the Council's familiarity with Chapter 92 of Haw. Rev. Stat.
15. The acts of the Hawaii County Council in the passage of Bill 250 ( Draft 4) did
constitute a wilful violation of Chapter 92 of Haw. Rev. Stat.
16. Therefore, all of the actions taken since Draft 4 Bill 250 are voidable.
17. A "voidable" act may be subsegnintly ratified or confirmed, or it may be made
finally valid by failure within the proper time to have it annulled, or by subsequent ratification or
confirmation. 92 C.J.S. "Void" at 1023 (1955).
WIDER
Bill 250 (Draft 4) shall be referred back to the County Council for ratification. Bill 250
(]haft 4) shall be formatted in the Ramsayer format to show changes from the existing code. Bill
250 shall become void on September 1. 1999, unless'ratifiedd.
DATED: Kealakekua, Hawaii , q i
t 115 0. t
o. i tE OF I ABOVE - ENTITLED COURT
Jerry D Rothstein et al. v. Crnmtysf Hawaii et al.; Civil No. 97- 028; Findings of Fact.
Conclusions of Law and Order
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