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Bill clarifying right to sue over zoning issues passes committee

February 25, 2014 - 12:05am

A bill clarifying property owners’ right to take their neighbors to court over violations of zoning code restrictions passed through the Senate Judiciary and Labor Committee Monday morning.

Senate Bill 2270 passed with amendments, according to the state Legislature’s bill tracking page. A phone message and email left with Committee Chairman Clayton Hee’s office seeking information about the amendments were not returned as off press time Monday.

Sen. Laura Thielen, D-Kailua, introduced the measure, which came after constituents approached her with concerns about an Intermediate Court of Appeals ruling last year regarding an Oahu case. In that ruling, Thielen said, the court said property owners needed to go through their respective county’s Planning Department to complain about property owners using their property in ways not permitted by the zoning code.

That might be something like using agriculture-zoned land for a wedding chapel, an unpermitted trucking business or a vacation rental, Thielen said.

The bill allows the property owners to go directly to Circuit Court, rather than asking the county to investigate, Thielen said. She said the county planning departments are generally good at enforcing some code restrictions — building heights or other structural item — but haven’t put as much emphasis on investigating reports of unpermitted uses.

Officials from all four Hawaii counties wrote in to oppose the bill.

Counties have the “exclusive jurisdiction” to govern zoning, Hawaii County Planning Director Duane Kanuha said in his written testimony, dated Friday.

“Interpreting what is permissible or non-permissible within County zoning categories is already a complex process, and one that can easily be subject to misinterpretation or just plain error,” Kanuha said. “To convey the ability for landowners to file land use suits directly to the courts to enforce zoning violations without pursuing a system of due process beforehand would only significantly frustrate the legal system and the land use process.”

Maui Mayor Alan Arakawa said in his testimony he thought the bill could result in “frivolous and expensive” lawsuits and open “an avenue to bypass the counties own administrative process.”

Thielen said she wasn’t trying to take any power away from the counties.

“To me, it actually is a benefit to them,” she said. “It won’t take away their ability to enforce.”

It’s easier, she added, for a neighboring property owner to gather evidence of the unpermitted use than for the county to send an investigator by and hope to get the same evidence.