Monday, October 8, 2007

County’s Failure to Meet Deadline Gives Landowner Automatic Approval for Use of Property

The Garden Island reports that Kauai County settled with landowners who sought development approval for the Koloa Marketplace. Several sections of Kauai County’s Comprehensive Zoning Ordinance provide that applications will be “deemed approved” where regulators fail to act within a specified timeline.

State law (HRS § 91-13.5) requires that state and county agencies (e.g., boards, commissions, departments, or officers) specify a maximum time for it to grant or deny business or development related permits. Applications not acted upon within the maximum time period “shall be deemed approved.” The state law applies to any state or county application, petition, permit, license, certificate, or any other form of a request for approval required by law to be obtained prior to the formation, operation, or expansion of a commercial or industrial enterprise, or for any permit, license, or certificate.

Automatic approval laws protect landowners from undue delay. Without such protection, regulators might stall a project on illegal grounds (e.g., they don’t like a certain project). In general, land use entitlements can only be denied when the applicant fails to comply with criteria adopted by the legislative branch of government; e.g., the state legislature or a county council to the extent that authority in certain matters is delegated to it by the state.

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