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August 11, 2017 r,)
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VIA HAND DELIVERY
Chair Karen Eoff
and Members of the Committee on Planning
Hawai'i County Council
25 Aupuni Street, Suite 1402
Hilo, Hawai'i 96720
Re: Public Testimony Regarding Bill 52: "Adopts the County of Hawari Ka'u
Community Development Plan (CDP)", August 15, 2017, 2:00 p.m.
Dear Chair Eoff and Members of the Committee on Planning of the Hawai'i County Council:
Carlsmith Ball LLP represents a number of clients that own properties within the Ka'u
Community Development Plan("Ka'u CDP") area. We write to caution the County Council that
a recent unpublished Intermediate Court of Appeals case held that the Kona Community
Development Plan("Kona CDP")had the force of law when applied to a Planned Unit
Development application in Kona, and as such, altered the provisions of other portions of the
Zoning and Subdivision Codes as applied to the specific parcel in question, even without a
separate ordinance specifically amending those Codes by the County Council. As similar
language is contained in the Ka'u CDP, we urge the County Council to carefully examine each
provision of the Ka'u CDP to avoid potentially adopting a special set of Zoning and Subdivision
Code provisions for parcels in Ka'u.
On June 26, 2017, the Intermediate Court of Appeals issued an unpublished opinion in
Missler v. Board of Appeals of the County ofHawai'i (CAAP-13-002347, CAAP-13-0002752 ?Dv ggib
and CAAP-13-0003040) ("Missler Decision"), which held that provisions within the Kona CDP :" 3
that were specifically indicated to be legally binding on County departments and agencies hold 1
the force of law under the facts and circumstances of that case. Thus, the ICA held that a F
provisions within the Kona CDP augment the Zoning Code and Subdivision Code for certain g
kinds of applications within the Kona CDP area.
The Missler Decision was contrary to the County's official position taken in the Missler
case. The County's position was that by adopting the Kona CDP, the County was not adopting
HONOLULU • HILO • KONA • MAUI • Los ANGELES
Chair Karen Eoff
and Members of the Committee on Planning
Hawai'i County Council
August 11, 2017
Page 2
law,but only recommendations. In addition, the County's position was that CDPs could not
change the Zoning Code and Subdivision Code without specific amendments being processed to
those Codes. See attached letter dated February 24, 2016 from former Planning Director, Duane
Kanuha to the Kona Community Development Plan Action Committee.
The Ka'u CDP contains similar mandatorylanguage as contained in the Kona CDP.
Section 2: Applicability of the Ka'u CDP states that Land Use Policies labeled "Policy
Controls": "... limit the range of decisions that can be made in the future, like land use policies
that specifically designate future settlement or transportation patterns. These binding, sometimes
restrictive policy controls often include use of the term 'shall', which, from a legal standpoint,
means the policy is imperative or mandatory." [emphasis added].
If the Missler Decision is not overturned, and absent corrective legislation, based on the
Missler Decision, it appears these "Policy Controls" in the Ka'u CDP could be interpreted by the
courts as automatically amending other inconsistent sections of the Zoning Code and Subdivision
Code, similar to the Kona CDP. For this reason, we urge the County Council not to pass the
Ka'u CDP with the "imperative or mandatory" language.
Given the Missler Decision, our County has the potential to be administering numerous
different codes and rules with respect to each geographical area covered by a different CDP.
This is not only unwieldy, but certainly not the original intent of the CDP process.
Additionally, the Council needs to carefully examine,be aware of, and make known to
the public, exactly what is being changed prior to the passage of the Ka'u CDP.
It is simply not fair to the public (some would call it denial of due process) to change
existing laws and rules which affect property interests without providing specific notice of what
is being changed, how it is being changed, and the effect of those changes on the property rights
of the owners, as well as all members of the public.
We urge the County Council to demand an open, fair and transparent process when it is
considering the Ka'u CDP so that all property owners in Ka'u can be notified of specific laws and
rules which may change and affect Ka'u property owners' interests.
Thank you for your consideration.
Sincerely,
Katherine A. Garson
Enclosure
xc with enclosure: Mayor
Planning Director
Corporation Counsel
4824-0078-4460.3
William P.Kenos ...... Duane Kanuha
Mayor - r ':\, Director
Bobby Command
DepuC Director
West llawai'i Office EastHawai`i Office
74-5044 Ane Keohol:atole Hwyo t+ 101 Pauahi Street,Suite 3
Kailue-Kona,ldawai'i 9674 '0 C I f aw.. 1 Hilo,Hawaii 96720
Phone(808)323-4770 Phone(808)961-8288
-
Fax(808)327-3563
PLANNING DEPARTMENT Pax(808)961-8742
February 24,2016
Mr.Hiram Rivera,Chairperson
Kona Community Development Plan Action Committee
Planning Department,West Hawai'i Office
74-5044 Ane Keohokalole Hwy
Kailua-Kona,HI 96740 S
SUBJECT: RE UEST FOR LEGAL OPINION
r
Dear Mr. 'vera.:
This is in response to a letter dated February 8,2016 from past KCDP AC Chairperson Greg Ogin
requesting clarification on whether the ordinance adopting the KCDP also amended all of the other
code provisions that the KCDP stated it amended. Further,the letter also asks if all sections of the
existing County Codes,that are not consistent with the KCDP,were also amended.
Both Assistant.Corporation Counsel William V.Brilhante Jr.and i reviewed the subject letter and
our joint response follows herein.
The short answer is no. The only way the Hawai'i County Code("the Code")can be amended is
through submittal and approval of a detailed amendment specific to a particular code section
clearly articulating the language to be deleted and/or added. Until such time as specific
amendments to the Code Sections Chapter 23 (Subdivisions) and 25 (Zoning) are approved by
Council action,the Code requirements remain unchanged and controlling.
Discussion:
The authority vested in the creation of the various Community Development Plans("CDPs")were
codified in the Hawaii County General Plan("GP"). The GP specifically states"the Community
Development Plans shall recommend amendments as appropriate to the codes, maps or
administration and enforcement (emphasis added). See GP 15.1, pg. 15-2 (February 2005 as
amended).
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Mr.Hiram Rivera,Chairperson
Kona Community Development Plan Action OQnunittee
February 24,2016
Page 2
The very intent of the CDP was to be another tool to assist the Planning Department through
submittals of"recommendations"that should be used to guide decision making in the future. There
was no intent in the GP for the CDP's to override any statutory requirements currently held.
The controlling documents which adopted the various CDPs are Ordinance No. 08 116, an
ordinance adopting the County of Hawai'i Puna CDP; Ordinance No. 08-131; an ordinance
adopting the County of Hawai'i Kona CDP; Ordinance No. 08 151, an ordinance adopting the
County of Hawaii North Kohala CDP.; and Ordinance No. 08 159, an ordinance adopting the
County of Hawaii South Kohala CDP. Each ordinance had a stated purpose which was to adopt
the CDP attached to the respective ordinance as Appendix A, pursuant to the County of Hawaii
General Plan,Section 15.1 (February 2005 as amended).
The COPS were subsequently and collectively adopted under Chapter 16,PLANNING,Article 2.
Community Development Plans,Section 16-2,Adoption of Community Development Plans of the
Hawai'i County Code. Section 16-2 states in part"The community development plans listed below
are adopted and incorporated by reference."
KONA. The document identified as"Mapping the Future:Kona Community Development
Plan Volume 1" is adopted by reference subject to later amendments by ordinance, and may be
cited as the"Kona CDP." The planning area for the Kona CDP encompasses the judicial districts
of North and South Kona.(emphasis added)
NORTH KOHALA. The document identified as"North Kohala Community Development
adopted byreference to later amendments byordinance,and maybe cited as the
Plan" isp subject
area for. the North Kohala CDP encom judicial asses the
"North Kohala CDP. The planning P
district ofNorth Kohala.(emphasis added)
PUNA. The document identified as the"Puna Community Development Plan"is adopted
by reference subject to later amendments by ordinance, and may be cited as the "Puna
i district f
CDP. em basis added) The planningarea for the Puna CDP encompasses the judicialo
( P P
Puna and the Volcano Census Designated Place that includes the Volcano Golf Course subdivision
in the district of Ka'u.
SOUTH KOHALA. The document identified as the "South Kohala Community
Development Plan"is adopted by reference subject to later amendments by ordinance,and may be
cited as the"South Kohala CDP."(emphasis_added) The planning area for the South Kohala CDP
encompasses the judicial district of South Kohala.
As you can see,the purposes for each of these ordinances and incorporation in the Hawaii County
Code were specific to the adoption of the particular CDP. None of them made any reference to
amending any other portion of the Code. Of all the CDP's individually adopted by ordinance,only
the Puna CDP was further amended by ordinances for clarification, designation or providing for
Mr.Hiram Rivera,Chairperson
Kona Community Development Plan Action:Gorimittee
February 24,2016
Page 3
e
non-substantive formatting and clerical revisions between November,2010 and December,2011 .
These amendments were proposed and adopted following the adoption of the initial Puna CDP
document in 2008, based on suggestions by the PCDP AC to the Planning Department, and
initiated by the Planning Director.
Section 3-10 (b)Hawaii County Charter("the Charter")specifically states,"Every ordinance of
the council shall embrace but one subject, which shall be expressed in its title. If an ordinance
embraces a subject not expressed hi its title,only that subject shall be void.(emphasis added)See
Hawai'i County Charter Section 3-10(b).
Accordingly,pursuant to the language of the Charter,other than adoption of the above-referenced
CDPs, any stated, expressed or implied amendments to any other sections of the Code, shall be
void.
Finally, as referenced in ordinances above, each CDP was adopted pursuant to a controlling
document, which by Charter is the GP. The GP sets forth specific language clearly delineating
which documents shall be controlling,wherein it states "If there is a direct conflict between the
Community Development Plan and the General Plan, the General Plan shall be controlling.
(emphasis added) See Hawai'i County General Plan Section 15.1 (February 2005 as amended)
Accordingly,not only will specific requirements of the CDP that are in conflict with the Code have
to be amended thru Council action,but any conflicts between the CDPs and the GP would have to
be specifically amended as well.Until such time as that takes place,each conflict that arises within
the CDPs are deemed void and unenforceable pursuant to the Charter and GP.
What the above determination means for the CDP AC's,is there is now a more interpretive role
for the AC's with respect to providing guidance to the department in the implementation of the
various components of the Kona CDP which were heretofore considered to be enacted and
therefore legally binding through its adoption. Two important elements of the Kona CDP,
Transportation and Land Use, although still guided by
the documents Vision Statement and
Guiding Principles,can now be implemented in a more flexible manner which is more reflective
of how community dynamics ebb and flow over time. Nevertheless,I fully expect that the AC's
will give due consideration to the intent of the participants and drafters of the KCDP in the exercise
of this expanded interpretive role.
Relatedly, then,various action items which are pending concurrence by this department relating
to the above, are hereby acknowledged and will be implemented. More specifically, the
recommendation by the AC as of your meeting of August 27,2014 relating to the use of adjacent
or nearby lands and/or improvements to make up a difference in a proposed master plan with a
total land area of less than 50 acres, and a recommendation on the application of CDP
transportation policy 6.1 to require application of the official concurrency map in a manner that
Mr.Hiram Rivera,Chairperson _
Kona Community-Development Plan Action:Committee
February 24,201.6. .
Page 4
area mitigation transportation improvements sufficient to offset traffic demand or impact of a
proposed project based on approved level of service(LOS)analysis will be applicable.
Staff will have to re-orient themselves a bit in response to this adjustment in how the Kona CDP
is to be viewed but I expect that this re-adjustment will provide a great opportunity for a closer
and more productive working relationship with the AC over time.It is thus critically important for
the AC members to clearly understand that amendments to existing ordinances are a time
consuming process and wholesale revisions will generally not be favorably considered. The AC's
with the assistance of staff will need toprioritize their.thinking and try to focus on what critical
elements of the CDP really and seriously need amending or revision.
I will be happy to respond to any further questions you or the other members of the KCDP AC
may have on this matter.
Sincerely,
(rif
DUANE KANUHA
Planning Director
DK:rl
c: Assistant Corporation Counsel William V.Brilhante,Jr.Esq.
Deputy Planning Director Bobby Command
All Division Managers
Kona CDP Action Committee Members
Managing Director