06-03-2010, 05:35 AM
The letter is extremely important especially if it serves to deflect individual comments. Here’s the scenario.
Under County Law, the criteria for granting a use permit requires the commission to evaluate the application as it pertains to:
“the proposed use shall be consistent with the general purpose of the zoning district, the intent and purpose of this chapter, and the general plan;” Unless your asking to build a rendering plant in the middle of high density residential, the project really just needs to be consistent with the character of the community.
“the proposed use shall not unreasonably burden public agencies to provide roads and streets, sewer, water, drainage, schools, police and fire protection and other related infrastructure.” This is straight forward, the various agencies have to state if the project will have any negative impact.
It’s the third item that presents the most problems. “the proposed use shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community’s character, to surrounding properties;” For a long time, this area has never been defined enough to give weight to one item or another. Is it community, or is it individual impact? The commission applied the standard based on whose voice was louder, or what economic impact had a more favorable return. In looking back over other decisions, there is no clear guide and often it sways based on who’s sitting on the commission at that time.
Note the law specifically mentioned surrounding properties and community character, not expanded community or district wide issues. If the applicant property is located in some type of association, by getting the association to endorse the project, it tends to indicate that the community and surrounding properties are also endorsing the project. This method has been successful because opposition tends to throw up their hands believing that if the association is backing a project, the individual has little or no say.
However, recent incidents in Maui and Honolulu Counties show that one adjoining property owner’s opposition has as much if not more weight than the entire association because State law requires that if there is a reasonable negative impact on a property owner, the applicant needs to mitigate that impact. HCC requires no adverse impact to surrounding property owners. Even if there is deemed no substantial or adverse impact to all but one property owners, the fact that there is that one, that alone may jeopardize the application approval. Using an association is nothing but a mobbing.
Many places on the mainland have since changed variance/special permit procedures to weigh association views only after the individual property owners had their say. Many associations have amended their by-laws to offer no endorsements unless all members approve. The reason associations have changed their position is because if there turns out to be some financial, emotion, or physical lost to a property owner due to the approval of a project the association endorsed, guess who’s door the attorneys start knocking on?
Under County Law, the criteria for granting a use permit requires the commission to evaluate the application as it pertains to:
“the proposed use shall be consistent with the general purpose of the zoning district, the intent and purpose of this chapter, and the general plan;” Unless your asking to build a rendering plant in the middle of high density residential, the project really just needs to be consistent with the character of the community.
“the proposed use shall not unreasonably burden public agencies to provide roads and streets, sewer, water, drainage, schools, police and fire protection and other related infrastructure.” This is straight forward, the various agencies have to state if the project will have any negative impact.
It’s the third item that presents the most problems. “the proposed use shall not be materially detrimental to the public welfare nor cause substantial, adverse impact to the community’s character, to surrounding properties;” For a long time, this area has never been defined enough to give weight to one item or another. Is it community, or is it individual impact? The commission applied the standard based on whose voice was louder, or what economic impact had a more favorable return. In looking back over other decisions, there is no clear guide and often it sways based on who’s sitting on the commission at that time.
Note the law specifically mentioned surrounding properties and community character, not expanded community or district wide issues. If the applicant property is located in some type of association, by getting the association to endorse the project, it tends to indicate that the community and surrounding properties are also endorsing the project. This method has been successful because opposition tends to throw up their hands believing that if the association is backing a project, the individual has little or no say.
However, recent incidents in Maui and Honolulu Counties show that one adjoining property owner’s opposition has as much if not more weight than the entire association because State law requires that if there is a reasonable negative impact on a property owner, the applicant needs to mitigate that impact. HCC requires no adverse impact to surrounding property owners. Even if there is deemed no substantial or adverse impact to all but one property owners, the fact that there is that one, that alone may jeopardize the application approval. Using an association is nothing but a mobbing.
Many places on the mainland have since changed variance/special permit procedures to weigh association views only after the individual property owners had their say. Many associations have amended their by-laws to offer no endorsements unless all members approve. The reason associations have changed their position is because if there turns out to be some financial, emotion, or physical lost to a property owner due to the approval of a project the association endorsed, guess who’s door the attorneys start knocking on?