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Home My WebLink AboutCOM 0088.046 1998-2000 0 0 March 8, 1999 Planning Committee of the Hawaii County Council Hilo Hawaiiisland 96720 -- r RECEJVED Re: Testimony at Planning Committee workshop on Bill 250 Drafts 4 &9 - - `319/99' County ounciljt/ Aloha members of the Hawaii County Council, COURT ORDER, CLARIFICATION, AND ADVISORY OPINION I'm Jerry Rothstein, a resident of Hawaiiisland and a plaintiff in the Zoning Code Sunshine law litigation (Civil 97 -028K) that has brought us here today to consider the disposition of Bill 250 drafts 4 & 9. The Court Order (0) of December 21, 1998 referred Bill 250 Draft 4 (D4) "back to the County Council for ratification, in the Ramsayer format to show changes from the existing code," with the bill to "become void on Sept.1, 1999 unless ratified." This Order was clarified (C) on Jan.6, 1999 by a Corp Counsel motion seeking to amend the Dec. 21 order to substitute D8 for D4 in the ratification. At that hearing the judge denied the motion to substitute D8 and further clarified his order. He indicated that D8 can't be used in ratification but it could be used in the process of adopting a new bill with a new number starting at the Planning Commission. Last week, after a month and a half, a copy of the transcript was given you to see for yourself what the judge intends the order to mean regarding processing D4 and D8. You also have the Corp. Counsel's March 4, 1999 Opinion 99 -1 pertaining to "Ratification of a Voidable Ordinance" indicating that "Ratification" means "confirmation of a previous act." I am using these three documents as the factual basis of my presentation. OPTIONS: The options given you by the 0 & C are: 1. "ratify" D4 intact and as per corp. Counsel's March 4 Opinion 99 -1, or 2. Start with a new bill as you would any new zoning code bill. The new bill can be anything you want including D8 as the court indicated, or D9 which supersedes it. The problems with ratifying D4 are: 1. All the many changes resulting from public input at two hearings and two Council meetings between first and second reading will be voided. In so doing, the `99 Council will be adding comparable injury to the injury inflicted by the wilful violations of the `96 Council. The `99 Council would be voiding all of the benefits derived from the rush of last minute public input that resulted from media coverage of the otherwise incomprehensible drafts 4 -8. 2. Administration items that were passed after D4 would also be voided such as the new home occupation section, and use permits for golf courses in every district. 3. Co- plaintiff Graham argues that D4 is not even ratifiable. comm. No.. R S . q to File No. k CC l2 N G Ref. To: Presentee! Pc n..r n.,.,. MAR 9 1999 0 0 NON - OPTIONS: Ratifying D8 or 9, or sending D8 or 9 to committee for amending and adoption are not options available to the Council. The reasons are: 1. It is clear from the Order, the transcript of the Clarification and the Court's January 6 ruling denying D8 for ratification, that D8 can only be used as a new bill, with a new number. - 2. D9 can't be ratified for the same reason. 3. D8 can't be ratified because it hasn't been Ramsayered like D4 & D9 are. 4. D9 can't be ratified because it substantially differs from the original D8. D9 contains four new sections not in D8 that passed two readings and became the new zoning code. These sections pertain to enforcing zoning violations, ohana regulations, farmer's markets, & industrial /commercial uses in multi - family district. 5. Draft 8 & 9 contain items that are no longer legal pursuant to charter changes approved by voters in the `98 election. If D8 or 9 is ratified, the Council would knowingly and willfully be adopting illegal laws in an attempt "to achieve a predetermined end of enacting Bill 250..." in violation of the 0 & C. Your actions parallel those of the '96 Council in this regard. GOLDEN OPPORTUNITY FOR BOTH THE PUBLIC & THE COUNCIL Aside from the legal requirements as indicated above, the value of starting with a new bill (D9 re- numbered) is that this time, with public notice and attention to this case, the public will, unlike before, get involved in the issues of the zoning code. Do you welcome such public participation, or is it too much bother? Just as important as public participation, the new bill (D9 re- numbered), can be reviewed and amended in accordance with the will of the majority of this new Council. The old boys began the process in `96. Let the new guys and gals finish it in `99, just as the public requested happen in `96, only two years later. What a unique opportunity to review and amend to the will of the majority, this document which controls one of the most important functions the Council engages in, i.e. zoning. Only two of the nine council members on the `96 Council that passed Bill 250 D8 are on the present Council. The rest of you are relatively new or brand new to it. The public won in court the right to sunshine in the zoning code. This Council should bask in that sunshine too, not seek to bury it again in `99 as was so shamefully done in `96. 0 0 POWER TRANSFER FROM COUNCIL TO ADMINSTRATION Many problems with the illegally adopted zoning code have already been brought to your attention. One theme running through that code is the taking of power previously in the hands of the Council and giving it to the administration. An example of this is 25- 4- 11(c). Formerly such public buildings as prisons where permitted where it conformed to the General Plan. The D8 & 9 codes allow the proposed 2,500 inmate prison in any district with only the approval of the Planning Director. This fact was contained in a front page story of the March 3 WHT. Other examples pertain to shoreline setback, 100' height limit approval, commercial yacht harbors and boating facilities including resort marinas being approved by the Planning Commission with a Use Permit rather than by the Council by ordinance, etc. Does the Council approve of such taking of its power by the inclusion of this provision in D8(9) of the new zoning code? THE ISSUES OF "ECONOMIC HARDSHIP" & "UNCERTAINTY" Despite the untrue characterization by Hugh Clark in the Feb. 23 Honolulu Advertiser, I am very concerned about the "economic cost" and the difficulty that may impact some people because of the wilful violation of the Sunshine Law by the `96 Council. It is unfortunate indeed that such reckless, irresponsible, and wilful actions of that offending majority, has caused temporary problems for some of our citizens, pursuant to the testimony of planning consultant Greg Mooers and his WHT letter to the editor last week. Timely processing of planning applications and rezonings are up to the Planning Dept., and the Council. I am deeply committed to rectifying this problem as quickly as possible and am here today doing my very best to help prevent needless delay caused by inappropriate Council action, and to expedite passing a zoning code that is in full compliance with the court's Dec. 21 Order and Jan. 6 Clarification. The Corp. Counsel, in his January 6 failed attempt to substitute ratification of D8 instead of D4, also indicated the need to make clear that the public can "rely on what they believed to be the lawful zoning code." It can, pursuant to the Corp. Counsel's letter of as referred to by Councilman Tyler. The threat of zoning reversals are so minimal and remote as to be unworthy of consideration, as was the Corp. Counsel's fear that "all actions taken between now and September 1, 1999 may be challenged" is unworthy of consideration. The court didn't buy that and neither should the Council. 4 0 ,e 0 0 REQUEST Accordingly, in order to expedite passage of a zoning code in compliance with the 0 & C, and avoid further delay, I respectfully request that this Planning Committee recommend that the County Council send D9 to the Planning Commission with a new bill number so that the adoption of a new zoning code can begin without further delay, and be completed in a timely manner. FINAL RECOURSE Should the Council proceed in a manner that violates the order and clarification, such action will be duly challenged in Third Circuit Court. rs for a better w y, tI 2 ...__ Jerry Roth teh, CDCW Hawaiiisland 96740