01-17-2007, 09:17 AM
Aloha Rob and Land Use WG Members:
I’ve received a response from Ivan Torigoe regarding your request that he, or other more suitable Corp. Counsel representative, speak to your WG. My initial feeling about this request, as it was with some speaker requests from other WGs, was that the questions being asked or information being sought did not seem to be particularly relevant to the task of the WG. Nevertheless, I did forward your request and questions on to Ivan and copied Lincoln Ashida and Chris Yuen to get their opinions on this. Ivan and Chris have responded similarly that the Corporation Counsel is not only extremely busy, but responsible for providing legal services to the various County agencies rather than rendering legal opinions to citizens. The Planning Department can either answer your specific questions or refer you to existing information on the subject, which I will attempt to do in this response.
You asked for Ivan to advise the WG on some possible land use recommendations, such as broadening the mail-out notification distance required for a zoning change application to prevent undue influence by a smaller group of people who might benefit from making a decision that impacts a larger area.
This sounds like a reasonable recommendation that, with perhaps a little more detailed explanation or some examples, ought to be seriously considered. Your recommendation might be more specific by indicating how broad you think the mail-out notification distance ought to be. A legal analysis of such a recommendation is premature at this stage of the CDP process and should be initially conducted by the consultant and County in their review and analysis of all recommendations. I have already heard a number of suggestions from WGs and individuals to address the issues and problems facing the residents of Puna that may be found to be legally challenging at best. However, I would not discourage anyone from making those suggestions anyway. Even if the recommendation poses some legal or constitutional problems, it should emphasize to the consultant and County the importance the community places on the issue or problem and perhaps inspire some more creative or intense problem solving activity to address the issue or problem.
Your list mentions a need or desire to better understand the “taking” issue. The Chris Yuen’s paper on the Hawaii Land Use Regulatory System (prepared in March 2006) contains a very good explanation on the basics of the issue of “takings” in the United States. You may find the entire paper on the County of Hawaii website at http://www.co.hawaii.hi.us/planning/Land...System.pdf. The portion on “takings” is reproduced below for your convenience. If you have other more specific questions on this subject, please feel free to forward them to me and we will attempt to answer them.
Limits of Land Use Regulation
Although the use of land is highly regulated, a land use regulation that goes too far can be
considered a taking of private property, and the government then has to compensate the
landowner. A series of U.S. Supreme Court decisions govern the law of takings. It is
much too complex to be summarized even in a few pages. Generally, though, a
regulation can greatly reduce the value of property without being a taking. Courts have
sustained downzonings that decreased the value by as much as 95%. But a regulation
that deprives the owner of all “economically viable use” of the property will be
considered a taking. The denial of a landowner’s request for a rezoning will generally
not be a taking, unless the property has no economically viable use under its existing
zoning.
The U.S. Supreme Court has also put limits on the kinds of conditions that can be
attached to a land use approval. Conditions must be related to the impact of the land use
change: there has to be a “rational nexus” between the land use condition and the
problem. For example, it would be illegal to make an applicant pay for the re-roofing of
the County Building as a condition of a rezoning to allow a shopping center: there is no
“nexus” with any impact created by the shopping center. There must also be a “rough
proportionality” between any condition and the impact of the project. For example,
making the developer of a small residential project pay for a new fire station would
violate “proportionality.”
The state and county can change land use approvals that have already been given. For
example, the County Council has the power to “downzone” a property to allow much less
development. At a certain point, however, the rights under existing approvals become
“vested” and the government cannot take them away without paying compensation. In
Hawaii, rights vest when the landowner has made substantial investments in good faith
reliance on the final discretionary permit. For example, a project that has zoning, but still
needs an SMA permit, is not “vested” because it has not received its final discretionary
permit. If the project only needs a building permit, and the owner has spent money on
architect’s fees, then it has “vested” because the building permit is not discretionary.
Caution: this description of the land use regulatory system is just a summary and does not
cover all situations and exceptions.
Regarding your final question on being able to restrict the amount of a lot to be cleared for urban or agricultural uses, Chris has asked me to pass on the following response.
“A new ordinance that limited the amount of land cleared for a home, in order to protect native forest, could be written in a way that was not a taking. It would have to allow some reasonable area to be cleared, and there would have to be a process, such as a variance or use permit, that would allow the possibility of clearing a greater area for bona fide agricultural purposes. My concerns are more with the enforceability of the ordinance, the ability of the county to map the areas that are to be protected, the actual benefit to native forest preservation, and the overall staff commitments that would be required to make a program like this work.”
I hope you will find the above response to your questions helpful. Please feel free to let me know if you have any other questions that will assist you in completing the task of your WG.
Mahalo,
Larry
From: Rob Tucker [mailto:castleb@aloha.net]
Sent: Thursday, January 11, 2007 9:53 AM
To: Larry Brown
Subject: Re: possible land use WG speaker
From my members:
For example, Mr.Torigoe could advise us on a possible Land Use WG recommendations, such as broadening the mail-out notification distance required for a zoning change application, to prevent undue influence by a smaller groups of people who might benefit from making a decision that impacts a larger areas.
to understand the "taking" issue better.
Properties that are zoned agriculture that have never been used for ag, and consist primarily of native forest vegetation, no soil (per se) etc., are quickly
changing from ag to rural or urban zones. Somehow it's not "taking" to change zones, depending on which direction it's changing from and to?
to understand that people have a right to live and/or farm their property, if it's zoned ag, regardless ofwhat's on it now. So what is wrong with limiting the
space of a residence on the lot- if it's primarily native forest, and then requiring the property owner/developer to justify the need to doze more, by
way of a special permit?
Rob
On Jan 11, 2007, at 9:47 AM, Larry Brown wrote:
Hi Rob,
Of course I can check on Ivan’s availability, but before doing so please let me know what questions and topics your WG is seeking answers to. Ivan may not be the appropriate attorney in Corp. Counsel to address your questions.
LB
From:Rob Tucker [mailto:castleb@aloha.net]
Sent:Wednesday, January 10, 2007 2:27 PM
To:Larry Brown
Subject:possible land use WG speaker
Hi Larry,
Could you see if Ivan Torigoe, who works with County Corporation Counsel, is available for Q&A
at our Jan/ 27th meeting?
Thanks,
Rob Tucker
965-1555
I’ve received a response from Ivan Torigoe regarding your request that he, or other more suitable Corp. Counsel representative, speak to your WG. My initial feeling about this request, as it was with some speaker requests from other WGs, was that the questions being asked or information being sought did not seem to be particularly relevant to the task of the WG. Nevertheless, I did forward your request and questions on to Ivan and copied Lincoln Ashida and Chris Yuen to get their opinions on this. Ivan and Chris have responded similarly that the Corporation Counsel is not only extremely busy, but responsible for providing legal services to the various County agencies rather than rendering legal opinions to citizens. The Planning Department can either answer your specific questions or refer you to existing information on the subject, which I will attempt to do in this response.
You asked for Ivan to advise the WG on some possible land use recommendations, such as broadening the mail-out notification distance required for a zoning change application to prevent undue influence by a smaller group of people who might benefit from making a decision that impacts a larger area.
This sounds like a reasonable recommendation that, with perhaps a little more detailed explanation or some examples, ought to be seriously considered. Your recommendation might be more specific by indicating how broad you think the mail-out notification distance ought to be. A legal analysis of such a recommendation is premature at this stage of the CDP process and should be initially conducted by the consultant and County in their review and analysis of all recommendations. I have already heard a number of suggestions from WGs and individuals to address the issues and problems facing the residents of Puna that may be found to be legally challenging at best. However, I would not discourage anyone from making those suggestions anyway. Even if the recommendation poses some legal or constitutional problems, it should emphasize to the consultant and County the importance the community places on the issue or problem and perhaps inspire some more creative or intense problem solving activity to address the issue or problem.
Your list mentions a need or desire to better understand the “taking” issue. The Chris Yuen’s paper on the Hawaii Land Use Regulatory System (prepared in March 2006) contains a very good explanation on the basics of the issue of “takings” in the United States. You may find the entire paper on the County of Hawaii website at http://www.co.hawaii.hi.us/planning/Land...System.pdf. The portion on “takings” is reproduced below for your convenience. If you have other more specific questions on this subject, please feel free to forward them to me and we will attempt to answer them.
Limits of Land Use Regulation
Although the use of land is highly regulated, a land use regulation that goes too far can be
considered a taking of private property, and the government then has to compensate the
landowner. A series of U.S. Supreme Court decisions govern the law of takings. It is
much too complex to be summarized even in a few pages. Generally, though, a
regulation can greatly reduce the value of property without being a taking. Courts have
sustained downzonings that decreased the value by as much as 95%. But a regulation
that deprives the owner of all “economically viable use” of the property will be
considered a taking. The denial of a landowner’s request for a rezoning will generally
not be a taking, unless the property has no economically viable use under its existing
zoning.
The U.S. Supreme Court has also put limits on the kinds of conditions that can be
attached to a land use approval. Conditions must be related to the impact of the land use
change: there has to be a “rational nexus” between the land use condition and the
problem. For example, it would be illegal to make an applicant pay for the re-roofing of
the County Building as a condition of a rezoning to allow a shopping center: there is no
“nexus” with any impact created by the shopping center. There must also be a “rough
proportionality” between any condition and the impact of the project. For example,
making the developer of a small residential project pay for a new fire station would
violate “proportionality.”
The state and county can change land use approvals that have already been given. For
example, the County Council has the power to “downzone” a property to allow much less
development. At a certain point, however, the rights under existing approvals become
“vested” and the government cannot take them away without paying compensation. In
Hawaii, rights vest when the landowner has made substantial investments in good faith
reliance on the final discretionary permit. For example, a project that has zoning, but still
needs an SMA permit, is not “vested” because it has not received its final discretionary
permit. If the project only needs a building permit, and the owner has spent money on
architect’s fees, then it has “vested” because the building permit is not discretionary.
Caution: this description of the land use regulatory system is just a summary and does not
cover all situations and exceptions.
Regarding your final question on being able to restrict the amount of a lot to be cleared for urban or agricultural uses, Chris has asked me to pass on the following response.
“A new ordinance that limited the amount of land cleared for a home, in order to protect native forest, could be written in a way that was not a taking. It would have to allow some reasonable area to be cleared, and there would have to be a process, such as a variance or use permit, that would allow the possibility of clearing a greater area for bona fide agricultural purposes. My concerns are more with the enforceability of the ordinance, the ability of the county to map the areas that are to be protected, the actual benefit to native forest preservation, and the overall staff commitments that would be required to make a program like this work.”
I hope you will find the above response to your questions helpful. Please feel free to let me know if you have any other questions that will assist you in completing the task of your WG.
Mahalo,
Larry
From: Rob Tucker [mailto:castleb@aloha.net]
Sent: Thursday, January 11, 2007 9:53 AM
To: Larry Brown
Subject: Re: possible land use WG speaker
From my members:
For example, Mr.Torigoe could advise us on a possible Land Use WG recommendations, such as broadening the mail-out notification distance required for a zoning change application, to prevent undue influence by a smaller groups of people who might benefit from making a decision that impacts a larger areas.
to understand the "taking" issue better.
Properties that are zoned agriculture that have never been used for ag, and consist primarily of native forest vegetation, no soil (per se) etc., are quickly
changing from ag to rural or urban zones. Somehow it's not "taking" to change zones, depending on which direction it's changing from and to?
to understand that people have a right to live and/or farm their property, if it's zoned ag, regardless ofwhat's on it now. So what is wrong with limiting the
space of a residence on the lot- if it's primarily native forest, and then requiring the property owner/developer to justify the need to doze more, by
way of a special permit?
Rob
On Jan 11, 2007, at 9:47 AM, Larry Brown wrote:
Hi Rob,
Of course I can check on Ivan’s availability, but before doing so please let me know what questions and topics your WG is seeking answers to. Ivan may not be the appropriate attorney in Corp. Counsel to address your questions.
LB
From:Rob Tucker [mailto:castleb@aloha.net]
Sent:Wednesday, January 10, 2007 2:27 PM
To:Larry Brown
Subject:possible land use WG speaker
Hi Larry,
Could you see if Ivan Torigoe, who works with County Corporation Counsel, is available for Q&A
at our Jan/ 27th meeting?
Thanks,
Rob Tucker
965-1555
Assume the best and ask questions.
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Punaweb moderator