Federal Judge Knocks Down Kaua`i Limit on New Visitor Units

posted in: Development, EH-XTRA, Tourism | 0

Posted 07/11/2013 

U.S. District Judge Leslie E. Kobayashi has determined that Kaua`i County’s limit on new transient accommodation units – or TAUs – is the result of “an improper zoning initiative and … is invalid.”

Kobayashi made the ruling in a lawsuit that was brought by Kaua`i Beach Villas-Phase II against Kaua`i County and the county’s Planning Department. (Environment Hawai`i published details of the lawsuit in our October 2012 issue.) KBV claimed that it had been improperly kept from developing a resort on land it owns in Nukoli`i by a charter amendment that resulted in the cap on TAUs. Following approval of the amendment — the result of a ballot initiative – the Kaua`i County Council enacted an implementing ordinance.

(To see the judge’s ruling, click here: kbv.)

In its lawsuit, KBV made three claims:

•First, that it had suffered an unconstitutional taking since it was denied the ability to develop its land.

•Second, that the charter amendment and enabling ordinance are invalid because they violate Section 46-4 of Hawai`i Revised Statutes, which does not provide for zoning by ballot initiative.

•Third, that the language on the ballot did not accurately describe the measure.

In her ruling of June 28, Kobayashi agreed with KBV that the Hawai`i Supreme Court decision in the Sandy Beach case – Kaiser Hawai`i Kai Development Co. v. City & County of Honolulu – invalidated voter initiatives that addressed land use. State law gives counties alone the right to pass zoning measures in the context of an approved general plan, the Supreme Court determined: “initiatives cannot take into account the myriad of different and often competing values and technical considerations that are developed, vetted and balanced through long-range, comprehensive planning,” the court wrote.

The county had argued that the charter amendment was not so much a zoning measure as it was a “shift of authority” – transferring authority to issue permits for TAUs from the county Planning Commission to the County Council (although authority would be returned to the commission once the council had established a growth rate for TAUs – something which occurred when the council passed Ordinance No. 912).

Kobayashi rejected KBV’s claim that the ballot language violated a provision in the county charter requiring an objective summary of initiative petitions. The charter provision KBV cited, however, refers to petitions that concern county ordinances and not charter amendments. “Although KBV presents a logical argument that ballot materials describing a proposed charter amendment should contain an objective summary and should neither mislead nor advocate a position, the courts are not in a position to create such a requirement,” she wrote.

As to KBV’s claim of an unconstitutional taking, “this Court expresses no opinion and makes no ruling,” Kobayashi concluded.


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