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Home My WebLink AboutCOM 0099.000 1998-2000 i - __ - _ - _ - _ - • 0 0 Territorial Centre, Suite 201 HILL,...; :to 75 -5751 Kuakini Highway '78 DEC 2' An 8 Ol Kailua -Kona, Hawaii 96740 Telephone 329 -1385 COL'. ` COLIWY 0: December 22, 1998 Hon. J. Arakaki Chairman, County Council County of Hawaii 20 Aupuni Street Hilo, Hawaii VIA FACSIMILE Re: Rezoning Measure Kaupulehu Developments Dear Chairman Arakaki: I testified before the planning committee on this measure at the Kailua -Kona meeting. I also provided information which the committee chairperson requested at the end of the hearing. In light of the court's decision on the effect of the Sunshine Law violations surrounding the enactment of Ordinance 96 -160, I prepared the enclosed letter for councilman Tyler, who has been in close contact with my clients known as "Ka Pa'akai o ka `Aina." Enclosed is a copy of my letter to councilman Tyler which I request be submitted to the members of the council for their consideration. Thank you very much. Ver 11, you Michael J. Matsukawa ENC Onus. No. / �+�g File No. '= �3fF= Presented couu Ref. Tot . Iaa DEC 2. 3 1998 0 RFC' T MICHAEL J. MATSUKAWA Territorial Centre, Suite 2018 DEC 23 AN 8 01 75 -5751 Kuakini Highway Kailua -Kona, Hawaii 96740 r, C J Y ` CLERK Telephone 329 -1385 December 22, 1998 Hon. J. Curtis Tyler III County Council County of Hawaii Kailua -Kona, Hawaii VIA FACSIMILE Re: Ordinance 96 -160 (Bill 250, Draft 8) Decision Rendered December 21, 1998 Civil No. 97 -028K, Third Circuit Court Regarding "Sunshine Law" Violations Dear Councilman Tyler: This is in response to your inquiry concerning the decision in Civil 97- 028K, particularly as it may affect my clients (styled as "Ka Pa'akai o ka 'Aina ") appeal before the state Supreme Court. The appeal involves the Land Use Commission's reclassification of 1,000+ acres at Kaupulehu, North Kona for the Kaupulehu Developments' project. As you know, my clients also intervened pro se in the County of Hawaii Planning Commission's SMA proceeding for the same project as a single entity. The Planning Commission granted the SMA permit for the project on December 11, 1998, subject to the enactment of the current rezoning measure before the county council to change the current zoning classification for the land into a "Project District" zoning district. The Decision in Civil 97 - 028K The judge held that the actions of the county council on November 13, 1996 (1st reading) and November 21, 1996 (2nd reading) on Bill 250 constituted "a wilful violation of Chapter 92 of Haw. Rev. Stat.," the Sunshine Law. (See conclusions 13 - 15). O O The subject matter in controversy was brought before the court under Section 92 -11, HRS which makes the actions of the county council "voidable" when deliberate violations of the Sunshine Law precede the enactment of municipal legislation. The legislature conferred upon members of the public the right to initiate a suit to question the validity of any municipal legislation which was enacted without compliance with the requirements of the Sunshine Law.' Under the Sunshine Law any member of the public can ask the court to fashion a remedy "for the purpose of requiring compliance with or preventing violations ... or to determine the applicability" of the Sunshine Law. Section 92 -11, HRS. The term "voidable" is used to create a right in some person to cancel a transaction at that person's choosing. For example, in sales of goods, a buyer has the right to cancel a sale contract if the seller does not deliver the goods agreed upon. See, e.g., UCC Article 2- 711(1). The right given to the buyer to cancel the contract makes the transaction between the seller and the buyer "voidable," i.e., subject to being canceled or terminated at the election of the buyer (the person upon whom the right of cancellation is conferred). This is in contrast to instances where, as a matter of public policy, a transaction is declared to be "void," regardless of what the parties to a transaction desire to be accomplished. An example can be found in the state's recording statutes where a deed that is not recorded is "void" (of no legal value) as against a bona fide purchaser. See, e.g., Section 502 -83, HRS. This distinction is described in Kanczrnu v. Parke, 6 Haw. 91. 94 (1872) (Allen, J.). In the first instance, a transaction is "voidable," i.e. may be rendered invalid at the instance of one party. On the other hand, a transaction that is "void" is a nullity from the outset, regardless of what the complaining party does or does not do. 0 O The court's remedy Having determined that the Sunshine Law did apply in this instance and had been wilfully violated, the court fashioned a remedy which it felt was appropriate to ensure "compliance with" the Sunshine Law. Thus, the court remanded Bill 250 and put the parties back to the eve of the 1st reading on Bill 250, Draft 4 (November 13, 1997). The court's language may appear confusing to some since the court determined at conclusion 17 that Ordinance 96 -196 is not "finally valid" and then orders the county council (1) to use the Ramsayer format on Bill 250, and /or (2) to "ratify," i.e., vote again on, Bill 250 by September 1, 1999, in default of which "Bill 250 shall become void. " Application to Ka Pa'akai o ka 'Atna As noted, under the court's decision, "all of the actions taken [by the county council] since Draft 4, Bill 250 is voidable." (Conclusion 16) Ordinance 96 -160 is not "finally valid" as a result. (Conclusion 17) In short, Ordinance 96 -160 is void and the status of Bill 250 is the form which had (procedurally and substantively) as of November 13, 1996. For this reason, the project district category created by Bill 250 and Ordinance 96 -160 do not legally exist as of this moment. Kaupulehu Developments' rezoning measure is not legally appropriate. Any suggestion that the county council could or should enact the rezoning measure anyway 2 Whether this is an appropriate remedy in a case where the county council has already completed all other procedural steps to the enactment and publication of Bill 250 as Ordinance 96 -160 deserves further study. The court did not say that Ordinance 96 -160 becomes invalid but that the proposed ordinance in the form of 3111250 would become void if the county council did nothing by September I, 1999. The court thereby "created" a right on the part of the county council to salvage the numerous proceedings leading up to the Sunshine Law violation (i.e., planning commission hearings and recommendation and council committee hearings). The court's order should not be read as meaning that Ordinance 96 -160 is still "sort of valid" or "valid until made invalid." The court was simply trying to "turn the clock back" to the eve of the 1st reading. The record without doubt states that as of November 13, 1997, Bill 250, Draft 4 was still nothing more thanzgoosed legislation. 0 0 (e.g., because the applicant is willing to accept the risk) invites further litigation and, more importantly, may trigger Section 92 -13, HRS. Closing As you can see, serious questions arise out of the court's decision and require further study. I do not know how many rezoning measures or permits were issued for uses deemed "permitted uses" under Ordinance 96- 160. However, as to the interests of Ka Pa'akai o ka 'Aina in the rezoning measure now before the county council for Kaupulehu Developments, I recommend that the county council defer any action on this measure until the court's decision can be fully analyzed. Thank you for the opportunity to comment on this matter. Yours - 6 Michael . Matsukawa c: Client "Any person who wilfully violates any provisions of this part shall be guilty of a misdemeanor, and upon conviction, may be summarily removed from the board unless otherwise provided by law." Section 92 -13, HRS. Since the court's order is designed to implement the Sunshine Law, action which violates the court's enforcement order could be construdconstruedviolation of "this part," i.e., the substantive terms of the Sunshine Law itself.