As contemplated by the Kauai‘i Charter in the millennium year 2000, the County Council adopted an update to the County General Plan. Such an update, while it does not mandate, sets forth the policies to govern county development. The plan,
As contemplated by the Kauai‘i Charter in the millennium year 2000, the County Council adopted an update to the County General Plan. Such an update, while it does not mandate, sets forth the policies to govern county development. The plan, which the charter provides, is to be filed with the Planning Department, included a goal for transient accommodation growth in the range of 1 1/2 percent per year.
However, in the early years of this century, the department essentially disregarded the policies of the plan and gave approvals, preliminary and definitive, for transient accommodation projects that would result in an increase of nearly 50 percent in the island’s tourist facilities.
Concerned about this huge deviation, under the sponsorship of the citizens group, the Coalition for Responsible Government, in 2008 voters of the county adopted a charter amendment by about a 2/3 vote, which transferred the authority to approve transient accommodations from the unelected Planning Commission to the elected County Council. The amendment also allowed a retransfer of the authority to the commission if an ordinance were adopted limiting the growth rate to that contemplated by the plan.
In 2011, the council sought to exercise the authority given in the amendment by adopting Ordinance 912, which exempted transient accommodation projects which had received at least preliminary Planning Department approvals and where the developer had incurred substantial costs and then set an allowance rate of 1 1/2 percent per year for transient accommodation growth.
In 2005, Kaua‘i Beach Villas Phase II acquired a portion of the Nukoli‘i project property. In the 1977 Kaua‘i General Plan, this property had been designated for resort usage, but no zoning action has been taken for it.
With the optimism and insouciance common to most developers, KBV applied to the Planning Department for an exemption under Ordinance 912 from the limitations it imposed.
As it appeared that the KBV property did not meet the qualifications for an exemption, the application was denied. KBV appealed this decision, but before any action on the appeal occurred it brought a federal court lawsuit against the county, the County Council and the Planning Department contending that the charter amendment and the ordinance were unconstitutional and invalid and that the charter amendment was in violation of HRS 46-4, which limits zoning power through charter amendments.
The complaint made seems fragile or erroneous in some places, but the outcome of any lawsuit (unless it is settled and settlements seldom can be made where there are claims of unconstitutionality) must await a determination by the court. Some general observations can be made.
Developers of real property look with disfavor on any law or practice, which will limit in any way their ability to create the project as and when they want it, and this case is typical of a developer’s inclination to attack legal impediments to what they want to do.
There is a legal principle that a claimant seeking relief from a ruling by a governmental agency must “exhaust the administrative remedy” before commencing a lawsuit.
KBV seeks to dismiss their failure to complete their appeal from the Planning Commission denial of their claim for exemption and proceeding to the lawsuit cavalierly asserting the appeal is a “futility.” It remains to be seen whether the court will view this disregard for customary practice favorably.
A review of the assertions made by KBV suggest that the real problem facing KBV relates to the impact of the ordinance. The claims made as to the charter amendment are inaccurate as to its purpose, terms and its effect. The only substantive provisions made by the amendment was the transfer of the authority to approve construction of tourist accommodations to the council with the requirement that the council must find that the proposed development was in the best interests of the county and in keeping with the principles of the applicable general plan.
Had the ordinance not been adopted, KBV could have presented its project to the council under substantially the same rules as would before the amendment govern a submission to the Planning Department. However, the ordinance established priorities which adversely affected KBV. If KBV has a legally sustainable grievance it should be directed at the ordinance and not the charter amendment.
Residents of Kaua‘i have an important stake in the outcome of the KBV case. Because of the real estate recession, developers have been basically inactive over the past four to five years. The KBV lawsuit seems a sign of a reawakening developer interest in furthering the construction of tourist accommodations. The charter amendment was a signal when enacted that the citizens did not want to see rampant growth in visitor accommodations that would overtax our infrastructure and change the rural nature of our island and that sentiment no doubt continues today.
It is hoped that the county will recognize the solid approval that the voters of the county gave to the purposes of the amendment and will vigorously support the answer it has filed and defend the KBV lawsuit to send a clear message that the reasons for the adoption of the amendment remain applicable and the protection that the amendment offers should not be impaired.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.
