Monday, October 22, 2007

Hawaii County Council Slays “Big Box Bill”

Without any study or reasonable basis, the Hawaii County Council was considering Bill 167, which would prohibit “superstores” in any zoning district.

“Superstore” is defined under the Bill as a business exceeding 90,000 gross square feet, offering for sale more than 25,000 different stock keeping units, and dedicating more than 20,000 gross square feet of floor area to the sale of groceries; e.g., Costco, Wal Mart, and K-Mart. The Council's 9-0 vote against the Bill is a triumph of reason and economic realism. Unfortunately, the same cannot be said for Kauai, which passed its Big Box Ban earlier this year.

One interesting part of the Bill, which also failed, was an amendment to prohibit superstores on Hawaiian home lands ("HHL"), because local zoning does not generally apply to HHL. HHL is a specific quantum of land that was carved out by the U.S. Congress as part of Hawaii’s Admissions Act. The lands are administered under the rubric of the Hawaiian Homes Commission Act (“HHCA”) which was incorporated, at the behest of the U.S. Congress, into Hawaii’s Constitution. Haw. Const. art. XII, § 1.

Because of the special status of HHL, the Hawaii Supreme Court has held that laws of the state cannot conflict with the HHCA. See e.g., Kepo`o v. Watson. Thus, the general rule is that “police power regulations apply to Hawaiian home lands, and executive officials may enforce them, as long as these regulations do not significantly affect the land.” See Kepo`o (holding that the state's EIS process will apply to HHL because it does not have a direct affect on the use of HHL); see also, State v. Jim, 80 Haw. 168 (1995) (holding that criminal law applies to HHL).

Unlike EIS laws and criminal statutes, zoning is a police power that directly affects the use of land and would have a direct impact on HHL. In line with Kepo'o, et al., a court would likely hold that Bill 167 impermissibly conflicts with HHCA.

1 comment:

Unknown said...

Thanks, Jesse, for the update. The issue of whether DHHL land is exempt from county zoning is an interesting one, and what the term "significantly affect the land" means. Will it mean the same test as regulatory takings?

Big box bans have been the subject of litigation in California and may be a model for the future, but the dynamic there is not quite the same as Hawaii due to geography - the stores, once banned in one jurisdiction can't simply move to just over the city/county line and set up shop in a neighboring jurisdiction that is open to the tax revenue such stores generate.