The URL can be used to link to this page

Home My WebLink AboutCOM 0351.009 2016-2018 Harry Kim .00-MSY o:ti''w'• Joseph K. Kam elamela Mayor •' `••'�� \�,i,,;,,; Corporation Counsel • __• U Renee N.C. Schoen • Assistant Corporation .4.4.6v4_....:;;..... 4.4 of M..:;;...'• Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street. Suite 325 • Hilo. Hawaii 96720 • (808)961-8251 • Fax(808)961-8622 c—a d U ") � -- October 4, 2017 -�< (n - -11c-) _� i,+ Valerie T. Poindexter, Council Chairwoman 2Z and Members of the Hawai`i County Council CD —" Hawaii County Council 25 Aupuni Street Hilo, Hawai`i 96720 Re: Ka`u CDP(Bill 52) Dear Ms. Poindexter and Members of the Hawaii County Council: On September 20, 2017, at the Council Meeting held at the West Hawaii Civic Center, Council member Tim Richards inquired as to whether the control policies within the Ka`u CDP (Bill 52) were advisories or mandates. I stated that the Ka`u CDP (Bill 52)would be a planning tool that provides for flexibility; and thus, not a mandate. Despite its approval upon first reading, some Council members and members of the public expressed a concern that enactment of this bill could produce unintended consequences in light of the Missler decision. We submit this opinion for your review and consideration during your deliberations on the Ka`u CDP (Bill 52): I. ISSUE: Whether the County Council may adopt the Ka`u CDP (Bill 52) as written. II. SHORT ANSWER: Yes, the County Council may adopt the Ka`u CDP (Bill 52) as written, without amendments,because it is legally defensible and, as a legislative act, is presumed by the courts to be valid. Unlike the Kona CDP, the Ka`u CDP does not automatically amend the County Code upon adoption. Hawaii County is an Equal Opportunity Provider and EmployerI damn No: 55 ' / Ref. To: ? OW" RAf. Date L I 0 4 201 - Valerie T. Poindexter, Council Chairwoman and Members of the Hawai`i County Council October 4, 2017 Page2of3 III. ANALYSIS: The County General Plan states that the purpose of the CDPs is to implement the broad goals within the General Plan on a regional basis. In other words, the CDPs translate the broad General Plan statements into specific actions as directed by community input into how that region wants to manage growth in the area. To that end, a CDP is a legislative planning tool that provides both guiding(hortatory) and binding(mandatory)policies directing the Planning Department to implement these various policies through its regulatory framework. A. Binding/mandatory Policies vs. Non-Binding Policies. The Ka`u CDP contains both guiding and binding policies. To determine which policies are guiding and which are binding, it is necessary to refer to pp. 17-18 which describe the two types of County Policies in the Ka`u CDP: 1) Land Use Policies, which include "Policy Intent" and"Policy Controls" and 2) "County Actions". If the policy falls under the subheading"Policy Intent,"the policy is hortatory(i.e., not mandatory). If the policy falls under the subheading "Policy Controls,"the policy is binding. If the policy falls under the subheading"County Actions,"the policy is not mandatory or legally binding, but often requires additional legislative (via County Council) or administrative(Planning Department or Planning Commission) directives after or upon adoption of the CDP. Policy Intent, Policy Controls and County Actions are specifically defined in the Ka`u CDP as follows: Police Intent: These are general statements that express policy aims or objectives. From a legal standpoint, these"hortatory"policies are open to interpretation when applied in specific instances. Page 17, section l.a. Policy Controls: These 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. Page 18, section 1.b. County Actions: are the official County policies to guide future County priorities and initiatives, including operating and capital budgets. These policies are not mandated, legally-binding, or self-implementing; rather, they often require additional legislative and administrative directives before being implemented (e.g., land acquisition, capital improvement appropriations, code changes, incentive measures). Page 18, section 2. The Ka`u CDP contains 150 policies. The enclosed chart depicts some of the 150 policies called into question by members of this Council and the public. The chart denotes the policy,page number where the policy is found, and whether that policy is binding or mandatory Valerie T. Poindexter, Council Chairwoman and Members of the Hawai`i County Council October 4, 2017 Page 3 of 3 and which are considered "County Actions" and therefore not binding but hortatory in nature, requiring further legislative or administrative action. When reviewing a land use application, the County must consider the General Plan, the Hawai`i County Code, Planning Department and Commission rules, the Hawai`i Revised Statutes, the Hawai`i Administrative Rules, and master plans. The CDPs are just another tool that the County must consider when reviewing a land use application. B. Missler decision as it relates to the Ka`u CDP. The Missler decision supports the Ka`u CDP in that it solidifies the effect of the"policy intent", "policy control" and"county action"definitions. The Ka`u CDP is substantively different from the Kona CDP in that it will not automatically amend sections of the code upon adoption. Indeed, the Planning Department has repeatedly represented to this body that the process followed for the past 9 years was specifically designed to not replicate the circumstances that allowed the Kona CDP to amend existing County Code provisions. Unlike the Kona CDP, the Ka`u CDP will not automatically amend sections of the code upon adoption. Even Policy Controls 28 regarding the '/ mile shoreline setback does not amend the code because the current island-wide 40' shoreline setback is a Planning Department rule, not a code requirement. Policy Controls 28 also provides the landowner an opportunity to submit information to the department to support a reduced setback. Finally, the County is authorized to require that shoreline setback lines be established at distances greater than 40' through rules or ordinances,pursuant to Hawai`i Revised Statutes § 205A-45. IV. CONCLUSION The County Council may adopt the Ka`u CDP (Bill 52) as written, without amendments. The Ka`u CDP is supported by the Missler decision and the County's General Plan. The Ka`u CDP does not automatically amend existing code provisions. Should you have any questions, please contact me at the office. Sincerely, JOSEPH K. KAMELAMELA Corporation Counsel Enclosure POLICY# PAGE# POLICY MANDATORY OR ACTION IS FOUND 2: commercial uses Page 38 MANDATORY-policy is a reaffirmation of General Plan policies 14.3.3(e), 14.3.5.9.2(a), and 14.3.5.9.2(b) 7: Land Use Policy Map Page 39 MANDATORY-policy does not automatically amend the General Plan and LUPAG maps 8: Low Density Urban Land Use Policy Map Page 39 MANDATORY-policy does not affect current zoning or legal entitlements but it does articulate what types of rezones the County would support in the future (based on infrastructure and community priorities) 9: infill capacity Page 39 MANDATORY-policy is directive on when and where to extend Pahala's urban growth boundary; it does not change the current zoning or legal entitlements of the subject parcel 10: Planning Director favorable recommendation Page 40 MANDATORY-policy directs the Director to recommend either the approval or denial of the proposed amendment to the Planning Commission subject to conditions which would further the intent of the Zoning Code, General Plan and other related ordinances (e.g., the Ka'u CDP ) 15: amend General Plan Land Use Pattern Allocation Guide Page 40 Action 16: amend General Plan Table Page 40 Action 17: brownfield assessment grants Page 40 Action 18: housing plan Page 40 Action 19: technical assistance Page 40 Action .. J 20: National Park Service's expansion plans Page 50 Action 27: coastal conservation and open areas Page 52 MANDATORY-policy reinforces existing protections (coastal areas have overlapping jurisdiction and fall under multiple layers of regulations) 28: shoreline setbacks Page 52 MANDATORY—policy does not amend code because current island-wide setback is 40' but allows mitigation measures to be considered and Planning Department to amend its rule. See policy#30 30: amend Planning Dept. Rule 11 Page 54 Action 31: SMA boundaries Page 54 Action 39: urban growth boundary Page 56 MANDATORY-policy limits the range of change of zone options outside urban growth areas in order to preserve agricultural areas and open space; it does not change or affect existing zoning or legal entitlements 49: Transfer of Development Rights Page 58 Action 56: environmental report shall include view plane Page 60 MANDATORY-policy requires a view plane and possibly a line-of-sight analysis be included in the already-required County environmental report in the case of a rezone; it does not control or prohibit rezones and it does not affect or change current permitted uses 57: Special Permit apps to mitigate scenic impact Page 60 MANDATORY-policy protects those aspects of character of the land in relation to open space and scenic resources, as much as possible, without infringing on the Planning 4 . . » Commission's authority to make informed judgments based on site-and use- specific characteristics; it does not affect or change current permitted uses or land use entitlements 58: Use Permits for wind energy facilities and Page 60 MANDATORY-protects telecommunications antennas and towers those aspects of character of the land in relation to open space and scenic resources, as must as possible, without infringing on the Planning Commission's authority to make informed judgments based on site-and use specific; it does not affect or change current permitted uses or land use entitlements 59: view plane regulations Page 61 Action 89: capital improvement priorities Page 72 Action 95: prevent flooding Page 75 Action 96: improve safety along Kamaoa Road Page 75 Action 97:improve safety on Wood Valley Road Page 75 Action 98:intersection improvements Page 75 Action 99: prioritize the maintenance of County roads Page 75 Action 100: roads-in-limbo Page 75 Action 101: remove the Naalehu bypass from the General Plan Page 75 Action transportation map 104: replace Wood Valley Road bridges Page 77 Action 110: emergency services based on population Page 79 Action 111: backlog of facilities improvements Page 79 Action 112: harden critical infrastructure Page 79 Action 113: build the Kahuku Park Community facilities Page 79 Action 114: civil defense warning systems Page 79 Action 115: helipad Page 79 Action 120: wastewater collection lines Page 81 Action 121: Ocean View solid waste transfer station Page 81 Action 122: improve Pahala Transfer Station recycling area Page 81 Action 123: green waste drop-off and mulch pick-up sites Page 81 Action