Wednesday, May 14, 2008

What Came First: The Zoning or the State Land Use Designation?

In the heyday of zoning and state land use districting in Hawaii, the state land use commission (“LUC”) designated most of east Maui as state agriculture in August of 1964. A few months later, the County of Maui zoned much of that property for residential uses.

Flash-forward 40 years or so, a landowner wants to build a residential project on the above property. Neighbors grumble (for the usual anti-development reasons) and the County administration notices that the residential zoning is inconsistent with the state land use designation; therefore, the County administration’s position was that the zoning is void. Under HRS § 205-5, County zoning must be compatible with the state agricultural district—residential uses are generally not compatible.

The County’s conclusion was undeterred by the fact that after the inconsistent zoning designation, the landowner sought and was granted a state district boundary amendment to the state urban district in 2005. In other words, the property was technically consistent with County residential zoning since 2005.

The County’s argument, which failed under the scrutiny of Second Circuit Court Judge Joel August, was that the zoning was void ab initio since the initial zoning was inconsistent. Judge August’s order in favor of the landowner ruled, inter alia, that zoning is a legislative act that cannot be undone by the County’s administration.

Humorously, one councilmember’s response in the face of a 40-year plus ongoing problem was: Why didn’t anyone let the Council know so that it could implement a legislative fix? Well, maybe they can fix it now, since many more landowners in east Maui suffer the same problem.

Source: Harry Eagar, One Pukalani zoning lawsuit settled — or maybe it’s not, May 6, 2008, available at

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