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HomeMy WebLinkAboutCOM 0351.014 2016-2018 Pi Pc Additional Testimony of Michael J. Matsukawa In Support of Bill 52 KA'U COMMUNITY DEVELOPMENT PLAN "What is 'the Missler Case' and Why Should I be Afraid of the Case?" -4 Council Chairperson Poindexter and Members of the County Council r County of Hawaii c -" This is additional testimony that supplements my prior testimony in support of Bill 52. Many have been heard to talk about "the Missler Case," but without informing you of the principles that the Intermediate Court of Appeals announced in that recent case that upholds the Kona Community Development Plan Ordinance. As such, it seems that "the Missler Case" is being employed to confuse you by suggesting that it is somehow wrong for the county's policy makers to follow the law. As one of the persons who has been involved with "the Missler Case" since it started in 2011, I direct you to the principles that the Intermediate Court of Appeals announced in that case: 1. The bill title for the ordinance (Bill 3333) is legally adequate and meets the requirements for ordinance bill titles set forth in Hawaii County Charter Section 3-10(b). 2. The "grandfather clause" in the ordinance did not exempt the development in question from the ordinance's coverage. 3. Some portions of the ordinance are "legally binding" and are not merely advisory in nature, such as Policies LU-3.3 and LU-3.4, Attachment "C" and Policy ENV-1.5. eariwn. No.: 351 , Ref. To: ef. Dote E 0 6 2017 4. An application for a planned unit development must show the uses, dimensions and locations of proposed structures, as required by the Zoning Code. 5. The county has a public trust obligation under the Hawaii State Constitution, Article XI, and Section 1 and must exercise its duties there- under "at every stage of the planning and decision-making process." 6. The Hawaii Supreme Court had previously ruled in 2006 that the county must enforce the public natural resources trust under Hawaii State Constitution Article XI, Section 1 and the county cannot ignore the court's or the voters' mandate.' 7. County agencies cannot "nullify" an ordinance that the county council has enacted and that county agencies are charged to enforce, even if county agencies may disagree with the county council's policy decisions that underlie and that are embraced by the ordinance. Those who have "warned" you about "the Missler Case" generally are concerned with Principle No. 3, above. However, the Kona Community Develop- ment Plan Ordinance is substantively different from the Ka'u Community Plan that is now before you. The Ka'u proposal does not have any of the features that are involved in Principle No. 3. That being the case, there is no cause to believe that "the Missler Case"presents legal obstacles to the enactment and enforcement of the Ka'u proposal. )A6/14-4177.4...41/71/4---- MICHAEL J. MATSUKAWA People Participating in Planning PPP (pipipi) 1 In 2010, Hawaii County voters added Section 13-29 to the Hawaii County Charter to make this obligation a county obligation as well.