LIHUE — Local residents are asking the Kauai County Council to pass a new law to circumvent a ruling by a federal judge in Honolulu. The ruling found initiating zoning amendments is the government’s business rather than a voter’s right.
LIHUE — Local residents are asking the Kauai County Council to pass a new law to circumvent a ruling by a federal judge in Honolulu. The ruling found initiating zoning amendments is the government’s business rather than a voter’s right.
In 2008, a Kauai County Charter amendment to keep the growth of transient accommodation units in line with the county’s General Plan was approved by 64 percent of voters. Three years later, the council passed Ordinance 912, implementing the amendment.
On June 28, U.S. District Court Judge Leslie Kobayashi ruled the developers of Kauai Beach Villas were right in a lawsuit arguing the charter amendment violates the Hawaii Revised Statutes.
She ruled the amendment, referred to as Section 3.19 of the charter, is invalid because it meant zoning by voters’ initiative, which is inconsistent with state law — it is the county council which should be implementing zoning amendments, not voters.
Ordinance 912, which paces the annual growth of TAUs at 1.5 percent of the existing inventory, is invalid because it is linked to the amendment, according to Kobayashi’s ruling.
On Wednesday, the council went into executive session to get a briefing from the Office of the County Attorney on Kobayashi’s ruling.
Prior to going behind closed doors, the council took testimony from two local residents who were part of a group involved in the crafting of the petition that led to the charter amendment.
“In 2008, the voters spoke nearly 2 to 1 margin to say that they were concerned with the Planning Commission’s disrespect for the vision of the General Plan and mismanagement of runaway growth in tourism,” said David Dinner of the Coalition for Responsible Government.
“Our beaches, parks, traffic and overall quality of life on Kauai is clearly a great concern to the voters, and we implore the council to fill the void left by the court’s decision by first appealing the decision to a higher court; and second, by passing immediately a new bill not linked to the charter amendment to replace Ordinance 912.
To Dinner, the ordinance was “good for Kauai then, and it is good for Kauai now.”
Rich Hoeppner said a simple word change in the original ordinance will do what the courts will accept.
Kauai would have the management of development that should have been done years ago, and the time and efforts spent by many to get the ordinance passed would not go to waste, he said.
Dinner said procrastination will likely be damaging.
“We cannot afford time for unnecessary studies or elaborate delay while new developments have time to be proposed. Please appeal the court decision now and take expeditious simple steps to a new ordinance,” he said.
TAU bill history
In the 2008, the Coalition for Responsible Government developed a charter amendment to pace the growth of TAU to reflect guidance from the county’s General Plan.
The amendment — approved in the November 2008 election — meant the county would have to keep TAU growth at 1.5 percent of the existing inventory (prior to December 2008) or along the lines of a growth proposed in any future General Plan.
It took almost three years for the council to approve an ordinance to implement the amendment.
Almost a year after the bill passed, on Aug. 27, 2012, Kauai Beach Villas filed a complaint at the U.S. District Court in Honolulu against the county, the council and the Planning Department.
The lawsuit had three counts in which Kauai Beach Villas sought a declaratory judgment.
Count I sought a declaration that the charter amendment and Ordinance 912 are unconstitutional and deprived Kauai Beach Villas of its right to substantive due process.
County II sought a declaration that the amendment and the ordinance are invalid because they violate the Hawaii Revised Statutes.
Count III sought a declaration that the amendment and the ordinance are invalid because the county failed to provide objective summary or the amendment in the 2008 ballots.
Kobayashi expressed no opinion and made no ruling on count I, but she ruled in favor of Kauai Beach Villas on count II, and denied their motion on count III.
