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HomeMy WebLinkAboutCOM 0088.068 1998-2000 • Marche 1999 � qA Hawaii County Council Hilo Hawaii 96720 1 V \, ,1 � Av Re: Clarifying the Bill 250 Zoning Code issues re ratification, harm, and deadline, and requesting that Draft 9 NOT be ratified. Dear Hawaii County Council chair & members, I would like to clarify the "harm" issue, the "deadline" issue, and answer the fundamental question "what is the difference between: (a) "NOT RATIFYING Draft 9, then bring it up as a new bill" and (b) "RATIFYING Draft 9, then bring it up as a new bill" Defining terms: "Old code" is what was in effect before the `96 Council changed it. "Existing code" is Bill 250 as passed in '96 and presently in force. "New code" is the existing code after it is amended and passed. There are significant differences resulting in substantially different outcomes in regard to the opportunity to amend the existing zoning code. (a) NOT RATIFYING D9 If NOT ratifyiing D9, the existing "voidable" zoning code remains in place until it is replaced with a new code by Sept. 1, or as extended by the Court. A bill (e.g. B250 D9 renumbered) for a new zoning code can be processed through the Dept, Commission, Committee, Council process in a relatively short time constrained by the Sept.1 deadline (which BJLT & l agreed the Court could extend if both sides requested it, which I'm certain the Court would reasonably do.) The new bill would be Ramsayered to the old pre -`96 code without indicating changes between the old code and the new code. In (a) when the new bill is adopted by a majority of five, that code with all of its new amendments would be virtually "veto proof' considering that the mayor would not veto a bill that would place in jeopardy many rezonings and all code changes that have occurred since Dec.96. "Not ratifying" assures both a specified time frame and a veto proof bill with a majority of five. The new bill would show the differences between the old code and the new bill. This process provides the greatest potential for assuring positive change in the existing zoning code. Very few people, if any will be harmed by delay. Those few people have or will have approvals based on a provision in the present code, that was not in the old code, that is not re- passed in the new code. Such cases, if any, would be handled by the courts a Z if there is an appellant with standing i.e. can convince the court that he or she has been o rd j harmed. At that time the issue of "equitable estoppel" (wherein the party has the right • r J z to depend on the actions of the government) will be addressed in court and is likely to Cc 0 o be resolved in the applicant's favor. In the meantime, the Corp. Counsel has affirmed = a that the Nov.'96 Bill 250 code is in effect, applications are being processed, and that actions taken nursuant to it are legal and will he honored by the County_ z F E c 4 4 rx A. • 0 0 (b) RATIFYING D9 If ratifying D9, the existing "voidable" zoning code is immediately readopted. A bill for a new zoning code would be processed the same way as in (a) (as has been proposed by the Plan.Comt. chair) except that there is no Sept.1 time constraint (extendable by the Court) so that the process could go on indefmitely rather than months, during which time the existing D9 code is operational. Also the new bill will be Ramsayered to the newly ratified (D9) code, not the old '96 code, (again hiding the changes.) If ratifying, if and when the new zoning code bill is passed by the Council, it is likely to be vetoed by the mayor since most if not all of the changes are to his administrations revisions. Such a bill would require six votes to overcome the veto because there is no "voidable" code at pending. A lot of people will be harmed by ratification. They are "the public" who were denied the "right to know" and are subject to the provisions of the zoning code that was passed in a "lava tube." The provisions of the zoning code impacts everyone! Don't ratify D9, use the existing code as Draft 1 of a new bill, "and they will come." "Ratifying" assures untold delay. The existing zone code remains in effect and six votes would be needed to override a veto. The new bill will not be Ramsayered to show the changes from the old code. This process provides the least opportunity for making a positive change in the existing zoning code. The people who have been illegally shut out of the process have been harmed, not once, but twice. Don't ratify D9, use the existing code as Draft 1 of a new bill, "and they will come." Aside from the "political" ramifications, the legal issues are also fraught with uncertainty about whether D9 is ratifiable. A careful reading of the transcript indicates to me that the judge expected Draft 9 (called "Draft 8" at the time) to be used in conjunction with a new bill, not as being ratifiable, and other questions. This position is strengthened by the fact that Corp. Counsel Wurdeman, in a motion for reconsideration, asked that D8 be substituted for D4 in the order. The judge denied the request. It will ultimately be up to Judge Ibarra to determine if the Council acted properly in the way it adhered to the Court's order regarding ratification. 1 ask that you vote to "not ratify" Draft 9 for any or all of the above reasons. I further request that a motion is made and passed to "not ratify D9 and send Bill 250 Draft 9 to the Planning Dept. to initiate a new zoning code bill." Considering that the Council would be starting with D9 which already was processed by the '96 Council, the process need not take longer than Sept. 1, as extended by the Court upon request. f. 0 0 You might ask staff what an "expedited" hearing process would look like. It would not have to linger at the Planning Dept for weeks or months nor would the Commission, which meets twice a month, need the maximum time as allowed. Committee meetings dedicated to the zoning code could be scheduled as often as necessary to get the job done within a reasonable time as allowed by the Court. Such expedited review is not to be compared to the 14 day action of the '96 Council when it adopted the present zoning code. A final consideration. The '96 Council ignored the Sunshine Law, but when people finally found out about the issues from the media and attended at the last minute, the Council did respond to their comments with some amendments. The '99 Council, has followed the Sunshine Law but if the Council ratifies D9, it may be following the letter of the law but abandoning the spirit by foreclosing all opportunities for making any amendments at this time. Ratifying Draft 9 is like giving food to a hungry man only to find its made of plastic and inedible. Or like allowing public statements on items on the agenda at the end of the meeting rather than the start (as Mayor Yamashiro did when Council chair), or like welcoming public testimony but shutting off the microphones. As I see it, ratification of D9 by the '99 Council as proposed, is as unacceptable as passage of Bill 250 by the '96 Council. Yours for a better way, Jerry Rothstein, founder, Let There Be Sunshine Hawaiiisland 96740 329 -1568 • At the Jan. 6 ex -pane clarification hearing the transcript pages provides more information about the meaning of the order. Ibarra said the ruling "was from draft 4 forward" and "draft 4 forward should be ratified." He said "to continue the process then you begin with draft 4 forward." And, "My order is clear. It pertains to Bill 250 D4 forward." Ibarra also said "the Council may just start with draft 8" clarifying that "there's no prohibition ...the Council starting beginning with Draft 8 and a new Council are going through the new process in adopting a bill." Also, "couldn't the Council just now introduce D8 as a first Bill for an Act —just start from 08 ?...rather than ratify from D4 ?" Also "we'll just move to have D8 introduced as a new bill and it will start the process basically with draft 8 but that not being the ratifying process..." And "I'm talking abut the Council just starting on a new ordinance with D8." And "no prohibition against introducing a new bill like D8 and the Council start anew on that bill as a new bill, not as a ratification..." And "...pass a new bill following the proper procedure in enacting a bill...with a new number of course." And, "this order does not preclude the CC from adopting any other ordinance." 0 One clear option is to "ratify draft 4." Another clear option is to start the process anew with a new bill number beginning with the Planning Commission with the understanding that its OK to start with draft 8 (or 9. *) O 0 auu tuc puutl, W lUClltll j' .1IlU Coal The court's message to the coun- uate the land use changes from the cil is "Let there be Sunshine." old code instead of merely re- I'd like to share information adopting the 1996 code with mini - about the lawsuit, some major zon- mal review and nominal public ing code changes that were passed input. "in the dark," whether the council The court gave the council up to should do a comprehensive review eight months to adopt a zoning of the zoning code with adequate code, the same time it took the 1996 public input, or a fast track ratifica- council. A comprehensive review tion and what you can do to protect can be accomplished in half the your rights. time. tomb The lawsuit: Several Sunshine The 1999 zoning code should be Law violations occurred in passing based on the work of the 1999 the `96 zoning code. The council council done in the light, instead of processed five drafts in nine days, the work of the 1996 council done some of which had substantive in the dark. changes, without providing sepa- Proposed fast -track ratification: rate advance public notice; drafts The Yamashiro administration listed on the agenda were replaced seeks rapid ratification on the by drafts not shown on the agenda; grounds that to do otherwise would the substitute drafts were not made disrupt the planning process. The available to the public in advance of 33 -day, fast -track ratification meetings; none of the drafts was planned by Planning Committee marked to show the administration- Chair Bobby -Jean Leithead -Todd, proposed changes from the then- which can start as early as Feb. 15, existing zoning code (by underlin- fails to include any committee ing additions and bracketing dele- meetings where the real work of tions); only the title of the bill reviewing the zoning code occurs. appeared on public notices and Instead, day one of 33 is a work - agendas and did not convey infor- shop in the morning and a public mation to inform the public of the hearing in Kona, day two is the stance of the bills. same. in Hilo. The bill would then Contrary to the stated purpose of proceed directly to the council for the bill to "eliminate duplications ratification. and conflicts with other parts of the While such high -speed ratifica- code and state law," the bill was in tion may comply with minimum fact a thorough revision of the sunshine requirements, it fit% far al entire 7nnina rnrle chnrt of a thnrnnah review nv th —� 0 O March 15, 1999 TO: EV,A FR: Jerry Rothstein, CDCW, co- plaintiff RE: Zoning Code /Sunshine Law case: ratify what passed in the dark, or open it to light. Judge Ibarra of the 3 Circuit Court declared that the current Hawaii County zoning code (passed December 12, 1996) was passed in "wilfull violation" of the Sunshine Law, declared it "voidable" and returned it to the County Council to either ratify it, or use it as the starting point of a new zoning code bill, by Sept 1. The issue to be decided at this Wednesday's County Council meeting is whether to go the "rubber stamp" ratification route, or to use the existing code as the first draft of a new bill. Rothstein said "Ratification allows for no amendments. It adopts the same defective existing code that the court ruled was passed without proper public notice in "wilful violation" of the Sunshine Law. The other option is that the existing zoning code becomes Draft 1 of a new bill which can then be meaningfully reviewed by both the Council and the public, and amended accordingly." Rothstein said, "Rubber stamp ratification is a meaningless exercise which affords neither the Council nor the public the opportunity to rectify the damage done in the dark. A new zoning code bill using the present defective code as Draft] allows the public and the council to understand and amend the code before adopting it. Rothstein said "Ratification proponent Council Chairman James Arakaki of Hilo, one of the "wilful violator" in `96, is one of only two councilpersons left on the Council that passed the defective zoning bill. Arakaki is also responsible for bills in the State legislature that would exempt County Councils from the Sunshine Law, just as the State Legislature exempts itself from the Sunshine Law.