U.S. District Judge Leslie Kobayashi
U.S. District Judge Leslie Kobayashi

LĪHU‘E – For the second time in six years, a Hawai‘i court has invalidated a voter-initiated amendment to the charter for the County of Kaua‘i.

On June 28, 2013, federal judge Leslie E. Kobayashi of the U.S. District Court, Hawai‘i District, issued a decision invaliding a 2008 amendment to the charter which added a new Section 3.19 to implement the 2000 Kaua‘i General Plan. The mayor, county council and planning department have all since agreed not to appeal the decision of Judge Kobayashi.

The amendment, which was authored by a citizens group called the Coalition for Responsible Government, sought to shift the authority to issue zoning, use, subdivision, or variance permits for more than one “Transient Accommodation Unit” (TAUs) from the planning commission to the county council and allowed the council to shift the authority back to the planning commission upon enactment of an ordinance to limit the growth rate of transient accommodation units. The amendment was approved by voters in the November 4, 2008 general election, and the enabling legislation, Ordinance No. 912, was passed by the county council in November 2011.

The complaint was filed in federal court in August 2012 by Kaua‘i Beach Villas – Phase II, LLC (KBV), and sought to invalidate Charter Section 3.19 as a prohibited zoning initiative in violation of Hawai‘i Revised Statutes Section 46-4(a).

In the June 28 Order, Judge Kobayashi concluded that the charter amendment was an improper zoning initiative, and also declared Ordinance No. 912 invalid because it sought to implement Charter Section 3.19. Citing the legal precedent of Kaiser Hawai‘i Kai Dev. Co. v. City and County of Honolulu, the Judge ruled that “[t]he legal principles…are clear, and they are equally applicable to other instances in which counties attempt to legislate zoning issues through zoning initiative.”

The court found that both the charter amendment and the ordinance “created a land use classification that did not previously exist, and they established the process developers must follow in order to use their land within that classification… [and] Section 3.19 and Ordinance No. 912 did not merely shift authority over a classification and process that already existed.”

This is the second time a voter-initiative to amend the charter has been struck down by the courts. In 2004, a group referred to as Ohana Kaua‘i petitioned and sponsored a tax relief initiative. However, the Hawai‘i Supreme Court struck down the voter-approved amendment to the charter, noting that “[v]oter-initiated and voter-approved county charter amendment limiting real property taxes usurped county council’s functions, powers, and duties relating to the taxation of real property, in violation of section of Hawai‘i Constitution providing that the power to levy a tax on real property shall be exercised exclusively by the counties.”

 

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