Plans and Zoning

Question 1

What is Hawaii’s State General Plan and how does it differ from other states?

Answer 1

Act 100 - Hawaii’s State General Plan was implemented as a statute. It is the only State to have done so.

Other states have statutes that authorize a General Plan, but the Plan itself is not a statute.

Power to grant variances is in the State Charter (determined by the voters).

Question 2

How is rezoning done in Hawaii?

Answer 2

Rezoning must come from state charter or the legislature.

Question 3

What takes precedence, the Development Plan or Zoning?

Answer 3

The most restrictive takes precedence.

Question 4

What is the order of priority in plans and zoning and what is the key document?

Answer 4

County General Plan –> Development Plan –> Zoning

Development Plan is the key document. Zoning must conform to it if the Development Plan is the more restrictive of the two.

Question 5

What is a functional plan and how are they followed?

Answer 5

10 or 12 in Hawaii. Education, higher education, tourism, etc.
• “take into consideration” means the functional plans are guidelines and not required to be followed.
• County functional plans - should “make every effort” to comply with. Still not a requirement.

Question 6

What is the relationship between the state plan and the county plans?

Answer 6

County Plans must “take into consideration” the state plan.
• The counties are not bound by the state plan, but it must be considered.
• State agencies are bound by the State Plan (such as the State Land Use Commission, BLNR) and must conform their decisions as such.

Question 7

What are the four land use districts in Hawaii at the state level?

Answer 7

1. Agricultural
2. Conservation
3. Urban
4. Rural

Question 8

What land use district do the counties have control over?

Answer 8

Counties only have full control over Urban, State controls the rest (some is partial control between the state and county).

Question 9

What is Euclidian Zoning?

Answer 9

Land is separated into certain districts including use, height, and area (minimum lot size) limitations.

Now use “use classifications” which include height and area restrictions instead of “overlays” like were used in Euclid.

Question 10

By what power do states regulate land?

Answer 10

Through the police power.

Health, Safety and public welfare.

Question 11

What is the test to determine whether a zoning regulation is a valid exercise of the police power?

Answer 11

Test - Is the zoning regulation (as applied to a particular property) arbitrary, capricious, and unreasonable? If not, defer to the local government/zoning commission.

the power of local governments to interfere with the rights of the landowner is not unlimited, and “such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” (Nectow)

Question 12

How is a zoning regulation viewed if there are multiple purposes?

Answer 12

If there is a Rational basis for the restriction, then secondary/indirect effects of anti-competitiveness do not invalidate the restriction. Multiple purposes must also be examined and if one purpose is invalid, the regulation can still stand. (Hernandez v. City of Hanford, furniture store case)

Question 13

What must a home occupation be to be allowed in a residential area?

Answer 13

Home occupation must be the type that does not disturb the residential environment of the neighborhood. (Rudolph)

Question 14

When is a special exemption generally granted?

Answer 14

Looks at how the special exception permit would affect the surrounding neighborhood. If the project provides a public benefit, and presents no or limited danger to the health, safety, and welfare, then the special exception should be granted.

Not required to build in the place with the lease amount of impact.

(Loyola College)

Question 15

What is a special use?

Answer 15

certain uses that may have beneficial effects and serve important public interests, but may also have significant adverse effects on the environment, overburden public services, or create a major nuisance. A review of these uses is necessary to ensure that any adverse effects are minimized before the use is approved.

Question 16

What is a “Floating Zone”?

Answer 16

a zoning area that is not placed on a zoning map, but rather held back to “float” until an “appropriate” development for which such zoning was formulated comes along. Once mapped, the zone no longer floats.
• Could be attacked on the grounds it resembles spot zoning.

Question 17

What is a buffer zone?

Answer 17

used to separate incompatible uses. E.g., separate residential from industrial by placing a strip of commercial zoning in between.

Question 18

What is Form-based zoning?

Answer 18

designed primarily for aesthetics, to make sure all buildings look similar, but does not care about what goes on inside.

Question 19

What type of government action is a zoning change?

Answer 19

legislative.

Question 20

What type of government action is a special use permit?

Answer 20

quasi-judicial

a higher standard to be upheld by the court.

Question 21

What findings are required to grant a special use permit?

Answer 21

The proposed development will not materially endanger the public health, safety, or welfare;

It will not harm surrounding property values unless it is deemed to be a public necessity;

It will be in harmony with the area in which it is to be located.
(Plain Grains, power plant case)

Question 22

What is tax increment financing?

Answer 22

increment is the difference between the original land value and the estimated value of the land after development. Bonds are issued by the city or county to finance development, which are then paid by the increased property taxes.

Question 23

When is zoning not legislative?

Answer 23

a determination of whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and subject to a different test. (single parcel)

Question 24

What makes zoning a legislative action?

Answer 24

ordnances that lay down general policies without regard to a specific piece of property are usually an exercise of legislative authority. (deference to legislative body unless arbitrary or capricious)

Question 25

In Hawaii, what type of act is a zoning map amendment/

Answer 25

In Hawaii, a zoning map amendment, no matter how small, is a legislative act. (Sunset beach)

This is different from case law in most states.

Question 26

In Hawaii, who makes all decisions in regards to zoning and permitting?

Answer 26

The director of DPP. Unusual because in most places the board grants permission; in Hawaii it is only advisory.

Question 27

What is the first appeal authority for zoning or permitting changes in Hawaii?

Answer 27

Zoning Board of Appeals.

Question 28

What is a nonconforming use?

Answer 28

A use that was legal and allowed at one time, but is no longer allowed in that location.

Question 29

What are the criteria for a variance to be granted?

Answer 29

1) Applicant would be deprived of the reasonable use of such land or building if the provisions of the zoning code were strictly applied,
2) The request of the applicant is due to unique circumstances and not the general conditions of the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question,
3) The request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordnance.
(Surfrider Foundation)

Question 30

What is the standard for the Zoning Board of Appeals to overturn a decision by the Director?

Answer 30

Clearly erroneous

Question 31

What is subdivision?

Answer 31

The process that enables a developer to divide land into parcels, tracts, or lots for sale after the land has been zoned and all applications for discretionary zoning approvals (conditional or special use permits, exceptions, variances, PUDS, overlay or floating zones) have been granted.

Question 32

When does a developer’s rights to build on land vest?

Answer 32

The approval of the preliminary plat vests the rights of the developer in whatever is in the preliminary plat against any further subdivision conditions or amendments to the subdivision regulations through to final approval and recordation. (Youngblood)

Reason is the developer often must expend substantial sums to comply with the conditions attached to that approval.

Developer must also act in reliance to have a vested right.

Question 33

What type of act is the approval of the final (developer’s) map?

Answer 33

a ministerial act as long as it is in substantial compliance with the previously approved tentative map.

Question 34

What is required for public improvement requirements to be assessed against a development.

Answer 34

On-site design and public improvement requirements are typically mandated in the subdivision regulations. Where possible, the regulations must specify these requirements. (Brous)

Question 35

What is the difference between an initiative and a referendum?

Answer 35

Initiatives are proposed through a petition process.

Referendum - bills passed by the city/county generally to be voted on by the public. Also applies when the county passes an ordnance, that is then petitioned and down-voted by the public.

Question 36

Are initiatives for rezoning allowed in Hawaii?

Answer 36

No. citizen initiatives for rezoning are likely not valid. All rezoning in Hawaii must be in line with the comprehensive plan. Citizen petitions on rezoning cannot be proceeding by actual planning.

Question 37

That is the standard to find a violation of substantive due process?

Answer 37

arbitrary, capricious, and unreasonable.

Question 38

Are building permits discretionary?

Answer 38

No.

If the developer follows all requirements, including zoning and building restrictions, then the permit must be issued. Generally the last thing needed before construction.

Question 39

In Hawaii, what must a developer have for vested rights?

Answer 39

Hawaii is a “last discretionary permit” state. Must have permit approval for rights to vest.

Coastal Zone Management Permit is the last discretionary permit (sub-division permit if not in a coastal zone). (Nukolii)

Question 40

What are the two requirements for vested rights?

Answer 40

Approval by a regulatory body (in Hawaii, last discretionary permit), and

Must be a substantial change in position in reliance upon the approval.

(Gallup)

Question 41

What does reliance require for vested rights?

Answer 41

generally requires expenditure of money, provided the money is spent after the last discretionary permit (no credit for what you spent before)

Money spent purchasing land is generally not considered reliance.

Some courts will generally look at the proportion of money expended compared to the size of the project. This is not a hard and fast rule. (See notes on pg 217).