Kauai residents have long held mixed views about the conflicts between tourism on our island and maintaining its rural flavor. The most recent update of the Kauai General Plan was made in 2000. General plans are not definitive in nature, rather they tend to reflect consensual views. The 2000 plan offered the view that a growth rate for tourist accommodations of about 1.5 percent per year would be defensible.
Although we have had a stagnation of real estate developments for the last five years, in the years immediately following the plan adoption, the market was much more active. The Planning Department was bestowing developers tourist project approvals at more than four times the rate suggested by the plan and without any apparent consideration of its contemplated limitations.
Concerned about this seemingly uncontrolled proposed transformation of our island, in 2008 the Coalition for Responsible Government, a citizens group, developed a proposed charter amendment seeking to remove approvals for tourist developments from what had become known as the “permitting” department and instead to authorize the council for this function believing that the Council would be more sensitive to public wishes.
The amendment also authorized the council to return by ordinance the authority of the Planning Department over transient accommodations if the department was instructed to follow the guidelines of the 2000 plan or any subsequent plan. The amendment was approved in 2008 by county voters by a wide margin.
In authoring the proposal for a charter amendment the coalition was well aware of the 1989 Hawaii Supreme Court decision in Kaiser Hawaii Kai v. Honolulu which held that despite the Home Rule for counties contained in HRS Sec.46.4, zoning by citizens initiative would not be permissible. The terms of the Charter amendment therefore carefully avoided establishing any “zoning” type of provisions and conferred on the council only a processing authority.
In 2011 the council adopted Ordinance 912 which reauthorized the Planning Department to process transient accommodation projects. Applicants would be required to meet limitations designed in the ordinance to conform to plan growth limitations.
In 2012 Kauai Beach Villas (KBV), a developer, applied to the Planning Department for approvals preliminary to construction of a 400-unit time share facility. The application was denied for failing to comply with Ordinance 912. Thereafter KBV initiated suit in the Honolulu Federal District Court attacking the validity of the charter amendment and the ordinance.
On June 28 of this year, Federal Judge Kobayashi issued a ruling upholding the contentions of KBV as to the invalidity of the amendment and the ordinance. The rationale for the court was that the amendment constituted “zoning by initiative” which was disallowed in the Kaiser Hawaii Kai case and the ordinance was invalid because it relied on the amendment.
At the outset it should be observed that the Hawaiian government officials and the judiciary, state and federal, do not regard citizen sponsored legislation favorably. In contrast to most states in Western America, for example, Hawaii does not allow its constitution to be amended by a citizen measure — it takes a constitutional convention or legislative action.
In addition to the Kaiser Hawaii Kai case, in recent years by a split vote the Hawaii State Supreme Court in 2007 struck down the citizens petitioned 2004 Kauai property tax charter amendment on the grounds that such taxation could only be by the Legislature and now the Federal District Court decision in the KBV case was made as to the only other citizen measure on similar grounds.
It would seem that laws arising from the efforts by and vote of citizens are considered of inferior status. Many believe Hawaii has it backwards — citizen originated laws should be the cornerstone of our society and not its rubble.
Several of Judge Kobayashi’s conclusions are quite challengeable. It may well be questioned whether the amendment involved any ”zoning.” The court’s view that the amendment established a new property classification is likely untenable as all that the amendment provided was to change the processing body in certain types of permit applications.
Another observation is that the precedent case the court used — Kaiser Hawaii Kai — was invalidated because it was a citizens initiative, while the measure involved in the KBV case was a charter amendment. The Kobayashi opinion may also be deficient by reason of the failure of the court to apply the Pullman doctrine and defer to a state court ruling on the validity of the state law in question. There are additional issues that could be mentioned.
The key remaining question is whether the county will seek to appeal the Kobayashi opinion.
Calls I have made to the County Attorney’s office to obtain guidance on this question have not been answered.
I can understand why the county might be reluctant to proceed on an appeal — it would be easier if matters were restored to pre-amendment conditions — but it would be irresponsible for our county government to fail to appeal a dubious decision and thereby serve the wishes of our voters who strongly supported the concerns of the charter amendment.
• Walter Lewis is a resident of Princeville and writes a biweekly column for The Garden Island.