03-04-2010, 02:15 PM
Kathy, Rob,
I wish it were that simple. You have State law (HRS 205) and you have County law (Chapter 25). They sound alike but with a few differences. Basically, the two do not merge well with each other so who has the better attorneys win before Planning.
Technically, the County cannot approve land use under any permit unless it's written into law as being allowed. State law says they can allow some non-conforming use only if it meets the intention of the zoning and isn't addressed. State law was meant to address activities not yet classified such as a computer server center back in 1980's before they were commonplace.
But HCC specifically states for each zoning: the following is permitted use, or the following is permitted with a use permit, or the following is permitted with a special use permit. Nowhere in any residential or agricultural zoning does it say “or any other use permitted by the County”. Using Hawaii case law, by omitting that option, they didn't grant themselves the ability to approve anything that isn’t specifically mentioned. So they are stuck with exactly what they did write as being allowed.
The County may think they can permit uses not specifically mentioned, but technically and legally they can’t. Just because they let things happen does not mean it was legal. Unfortunately, you need someone with the money or will to challenge it. Until the people challenge it in court, it will continue
As for those with SUPs and conducting non-conforming use on AG land, it also depends on the specific type of AG zoning and the 1980's exemption date.
I wish it were that simple. You have State law (HRS 205) and you have County law (Chapter 25). They sound alike but with a few differences. Basically, the two do not merge well with each other so who has the better attorneys win before Planning.
Technically, the County cannot approve land use under any permit unless it's written into law as being allowed. State law says they can allow some non-conforming use only if it meets the intention of the zoning and isn't addressed. State law was meant to address activities not yet classified such as a computer server center back in 1980's before they were commonplace.
But HCC specifically states for each zoning: the following is permitted use, or the following is permitted with a use permit, or the following is permitted with a special use permit. Nowhere in any residential or agricultural zoning does it say “or any other use permitted by the County”. Using Hawaii case law, by omitting that option, they didn't grant themselves the ability to approve anything that isn’t specifically mentioned. So they are stuck with exactly what they did write as being allowed.
The County may think they can permit uses not specifically mentioned, but technically and legally they can’t. Just because they let things happen does not mean it was legal. Unfortunately, you need someone with the money or will to challenge it. Until the people challenge it in court, it will continue
As for those with SUPs and conducting non-conforming use on AG land, it also depends on the specific type of AG zoning and the 1980's exemption date.