Kaiser Hawaii Kai Development Co. v. City & County of Honolulu

777 P.2d 244, 70 Haw. 480, 1989 Haw. LEXIS 38

• Court: Hawaii Supreme Court
• Decided: June 21, 1989
• Docket: NO. 13286
• Status: Published

Opinions

OPINION OF THE COURT BY

WAKATSUKI, J.

In this case, the majority of this court filed an order affirming the decision of the circuit court on May 17,1989. The basis of the affirmance is the following opinion.

I.

Bishop Estate is the fee owner of a tract of land divided into two segments, which are designated as Golf Course 5 and Golf Course 6, in the Kalama Valley area in East Honolulu. Kaiser Hawaii Kai Development Company (Kaiser) has the legal right to possess and develop this land. This land has been zoned for residential use since 1954. A portion of the land falls within the Shoreline Management Area. See Chapter 205A, Hawaii Revised Statutes (HRS) (1985 & Supp. 1988). Before Kaiser could proceed with its planned residential housing project on this tract, it had to obtain a special management area use permit from the City and County of Honolulu (City).

A.

The permit application drew the attention of a number of citizens who protested that the housing development would severely impact the beach area known as Sandy Beach which is on the opposite side of Kalanianaole Highway from the proposed development area. The citizens voiced their concerns relative to the housing development in a series of public meetings and hearings before the City Departmen t of Land Utilization, the Hawaii Kai Neighborhood Board, and the City Council. But Kaiser was eventually granted a permit to proceed with its plan for the housing development.

A group of citizens formed The Save Sandy Beach Coalition (Coalition) to prevent the housing development. The Coalition circulated an initiative petition which proposed to amend the designation of the tract from residential to preservation on both the City’s land use development plan and zoning maps. The Coalition, in accordance with Article III, Chapter 4 of the Revised Charter of the City and County of Honolulu 1973 (1984 ed.) (Charter), gathered the necessary signatures to place the initiative proposals on the ballot for vote by the electorate of the City on November 8,1988.

B.

Kaiser, by initiating this suit prior to the election, sought, inter alia, a declaration that the initiative process was an improper procedure to downzone the tract of land from residential use to preservation. Bishop Estate joined with Kaiser. The circuit court agreed with Kaiser and Bishop Estate, and thereby enjoined the placement of the initiative proposals on the ballot.

This court, upon motion by the Coalition, stayed the circuit court’s injunction, thus permitting a vote on the initiative proposals on the November 8,1988 general election ballot. The order staying the injunction expressly noted that the court did not determine the merits of the appeal. At the general election, the initiative proposals were approved by the electorate.

II.

The issue before this court is whether the initiative proposals adopted by the electorate of the City on November 8, 1988 validly amended the land use development plan and zoning maps of the City. We answer in the negative.

In view of our holding herein, we deem it unnecessary to determine the issue of whether appellees’ constitutional rights to due process have been violated by the initiative process.

The duty of this court in interpreting statutes is to ascertain and give effect to the intention of the legislature. Reef share, Ltd. v. Nagata, 70 Haw. 93, 100, 762 P.2d 169, 174 (1988). In view of legislative history, it is abundantly clear that the legislature in its wisdom established a public policy of not effectuating land use zoning through the initiative process.¹

The counties of our state derive their zoning powers from HRS § 46^1(a) (Supp. 1988), referred to as the Zoning Enabling Act. It states in pertinent part:

Zoning in all counties shall be accomplished within the framework of a long range, comprehensive general plan prepared or being prepared to guide the overall future development of the county. Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner.

The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accord with a long range, comprehensive, general plan, and to insure the greatest benefit for the State as a whole. (Emphasis added.)

The language of the Zoning Enabling Act clearly indicates the legislature’s emphasis on comprehensive planning for reasoned and orderly land use development. This emphasis on planning was reiterated in the statement of policy adopted as part of the legislation enacting the Zoning Enabling Act There, the legislature stated:

The pressure of a rapidly increasing population in the Territory of Hawaii requires an orderly economic growth within the various counties and the conservation and development of all natural resources. Adequate controls must be established, maintained and enforced by responsible agencies of government to reduce waste and put all of our limited land area, and the resources found thereon, to their most beneficial use. [ ¶ ] It is the intent and purpose of the legislature, by means of zoning ordinances and regulations enacted by or under this act, and in accord with a long range, comprehensive general plan, to promote the health, safety, convenience, order, welfare and prosperity of the present and future inhabitants of the Territory.

§ 1, Act 234, 1957 Session Laws of Hawaii.

Zoning by initiative is inconsistent with the goal of long range comprehensive planning, and “[i]t seems unlikely that the Legislature intended the possible frustration of comprehensive zoning through the initiative process.” Smith v. Township of Livingston, 106 N.J. Super. 444, 457, 256 A.2d 85, 92 (1969).

In Township of Sparta v. Spillane, 125 N.J. Super. 519, 525-526, 312 A.2d 154, 157 (1973), a New Jersey Superior Court stated:

Zoning is intended to be accomplished in accordance with a comprehensive plan and should reflect both present and prospective needs of the community. [ ] Among other things, the social, economic, and physical characteristics of the community should be considered. The achievement of these goals' might well be jeopardized by piecemeal attacks on the zoning ordinances if referenda were permissible for review of any amendment. Sporadic attacks on a municipality’s comprehensive plan would tend to fragment zoning without any overriding concept. That concept should not be discarded because planning boards and governing bodies may not always have acted in the best interest of the public and may not, in every case, have demonstrated the expertise which they might be expected to develop. (Citations omitted.)

Similarly, the Washington Supreme Court stated in Leonard v. City of Bothell, 87 Wash. 2d 847, 852, 557 P.2d 1306, 1309-1310 (1976) (quoting Kelley v. John, 162 Neb. 319, 323-324, 75 N.W.2d 713, 716 (1956)):

The uniformity required in the proper administration of a zoning ordinance could be wholly destroyed by referendum. A single decision by the electors by referendum could well destroy the very purpose of zoning where such decision was in conflict with the general scheme fixing the uses of property in designated areas____It would permit the electors by referendum to change, delay, and defeat the real purposes of the comprehensive zoning ordinance by creating the chaotic situation such ordinance was designed to prevent.

We are cognizant that both Spillane and Leonard involved referenda. Nevertheless, we agree with the reasoning and statements made by the respective courts as applied to the process of zoning by initiative.

Our reliance on these referenda cases may provoke the argument that this court implicitly approved of zoning by referendum in County of Kauai v. Pacific Standard Life Ins. Co., 65 Haw. 318, 653 P.2d 766 (1982), commonly referred to as the Nukolii case, and that zoning by initiative should likewise be approved. In the Nukolii case, the voters of the County of Kauai repealed a zoning ordinance by referendum vote. This Court in that case quoted some language from City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668 (1976), see footnote 4, infra, which may intimate that charter provisions providing for referenda are superior to conflicting state statutes, see 65 Haw. at 323-324, 653 P.2d at 771-772. But the court in the Nukolii case was not faced with the issue of whether zoning by referendum is permissible in light of HRS § 46-4(a). We, therefore, hold that the Nukolii case is inapposite.

C.

In 1957, when the Zoning Enabling Act was enacted in substantially the same form that it exists today, initiative was not available at either the state or local government levels. Initiative at the county government level was unknown until the adoption of county charters in 1968. (Initiative was not available in the City and County of Honolulu until 1982.) Therefore, it is reasonable to conclude that the legislature did not contemplate zoning through the initiative process in enacting the Zoning Enabling Act. If the legislature intended otherwise, it would have so legislated. (Cf. Associated Home Builders v. City of Livermore, 18 Cal. 3d 582, 135 Cal. Rptr. 41, 557 P.2d 473 (1976), where, in light of a state constitutional provision providing for initiative, the court reasoned that if the legislature intended to exclude zoning from initiative power, it would have so legislated.)

Since 1957, there has been no legislation enacted by the legislature to indicate a change of intent relative to zoning proposals through the initiative process. In reaffirming its aim of having long range comprehensive land use planning by the state and counties, the legislature enacted the State General Plan, HRS chapter 226, in 1978.² County general plans under chapter 226 are defined as comprehensive long-range plans. HRS §226-2 (Supp. 1988). Those county general plans and the more detailed development plans are to be

(1) formulated with input from the state and county agencies as well as the general public, (2) take into consideration the state functional plans, and (3) be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public.

Lum Yip Kee, Ltd. v. City and County, 70 Haw. 179, 186, 767 P.2d 815, 820 (1989).

Moreover, the concept of legislation by initiative was debated and rejected at the Constitutional Conventions of 1950,1968 and 1978. See I Proceedings of the Constitutional Convention of Hawaii of 1950 at 182-189; II Proceedings of the Constitutional Convention of Hawaii of 1950 at 744-780; I Proceedings of the Constitutional Convention of Hawaii of 1968 at210-211; II Proceedings of the Constitutional Convention of Hawaii of 1968 at 520-523; I Proceedings of the Constitutional Convention of Hawaii of 1978 at 371-403, and II Proceedings of the Constitutional Convention of Hawaii of 1978 at 813-837.

D.

This court is mindful that there are jurisdictions which have upheld zoning by initiative despite the existence of laws calling for comprehensive plans for land use development, but in each of those jurisdictions there exists constitutional or statutory provisions reserving to the electorate the power of initiative and/or referendum.^{3 4} We note that the cases cited by appellants are silent with respect to whether zoning by initiative furthers the goal of long range comprehensive planning for land use development.

III.

Appellant City contends that the Charter provision which permits zoning by initiative⁵ is superior to contrary state statute. We disagree.

Article VIII, section 2 of our state constitution, in pertinent part, provides:

Each political subdivision shall have the power to frame and adopt a charter for its own self-government within such limits and under such procedures as may be provided by general law. Such procedures, however, shall not require the approval of a charter by a legislative body.

Charter provisions with respect to a political subdivision’s executive, legislative and administrative structure and organization shall be superior to statutory provisions, subject to the authority of the legislature to enact general laws allocating and reallocating powers and functions.

Daniel R. Foley (Alan B. Burdick with him on the briefs) for Appellant-Defendant The Save Sandy Beach Initiative Coalition.

Section 6 of the same article further states:

This article shall not limit the power of the legislature to enact laws of statewide concern.

Neither of the appellants contend that the need for comprehensive long range planning for orderly land use development is merely a local, and not a statewide concern. The legislature clearly expressed concern for orderly and coordinated development within and between the counties when it adopted both the Zoning Enabling Act in 1957 and the Hawaii State Planning Act in 1978. See supra at p. 4 and footnote 2.

The City argues that although HRS § 46-4(a) authorizes the City to enact zoning ordinances, the manner in which such ordinances are enacted — by the City Council or through initiative — is a matter of “legislative ... structure and organization.” Therefore, pursuant to the state constitution, state statutes which dictate the process by which zoning ordinances are enacted are not superior to charter provisions which permit initiative. We disagree.

The thrust of HRS § 46-4(a) is not to dictate the manner in which zoning ordinances are promulgated, but to assure that, however enacted, those ordinances comport with that long-range general plan, “and to insure the greatest benefit for the State as a whole.” Id. We hold, therefore, that HRS § 46-4(a) does not relate to the City’s “executive, legislative and administrative structure and organization.” Consequently, the statute is superior to the Charter’s provision and, for the reason that it is inconsistent with the purpose of HRS § 46-4(a), zoning by initiative is impermissible.

IV.

In view of legislative history and clear legislative intent, we declare that the amendments which downzoned the tract of land designated as Golf Course 5 and Golf Course 6 from residential to preservation through the initiative process are invalid.

Jane H. Howell, Deputy Corporation Counsel, for Appellants-Defendants City and County of Honolulu and Raymond K. Pua. Kenneth Kupchak (Robert H. Thomas, R. Charles Bocken, Steven H. Levinson and Kamala J. Larsen with him on the briefs of Damon, Key, Char & Bocken) for plaintiffs-appellees. C. Michael Hare (Gail M. Tamashiro and Constance C. Arvis with him on the briefs of Cades, Schutte, Fleming & Wright) for appelleesplaintiffs-intervenors.

1 In this opinion, unless the context clearly indicates otherwise, “zoning by initiative,” or such similar terminology, refers to amendments to both the detailed county development plans and zoning maps effected through the initiative process.

2 HRS § 226-1 (Supp. 1988) clearly establishes the legislature’s concern for comprehensive long range planning. It states:

Findings and purpose. The legislature finds that there is a need to improve the planning process in this State, to increase the effectiveness of government and private actions, to improve coordination among different agencies and levels of government, to provide for wise use of Hawaii’s resources and to guide the-future development of the State.

The purpose of this chapter is to set forth the Hawaii state plan that shall serve as a guide for the future long-range development of the State; identify the goals, objectives, policies, and priorities for the State; provide a basis for determining priorities and allocating limited resources, such as public funds, services, human resources, land, energy, water, and other resources; improve coordination of federal, state, and county plans, policies, programs, projects, and regulatory activities; and to establish a system for plan formulation and program coordination to provide for an integration of all major state, and county activities.

3 Appellants refer to numerous cases from California and Ohio. In both those states’ constitutions, the people have reserved to themselves the power of initiative. The same is true for Colorado, thus rendering Margolis v. District Court, 43 Colo. App. 480, 638 P.2d 297 (Colo. 1981), inapposite. City of Coral Gables v. Carmichael, 256 So. 2d 404 (Fla. Dist. Ct. App. 1972), cert. dismissed, 268 So. 2d 1 (Fla. 1972), and State ex rel. Hunziker v. Pulliam, 168 Okla. 632, 37 P.2d 417 (1934), involved referenda in states where referendum is provided for in the state constitution. Denney v. City of Duluth, 295 Minn. 22, 202 N.W.2d 892 (1972), is readily explained by the fact that by state statute, Minnesota provides for municipal referenda.

4 In City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668 (1976), the United States Supreme Court held that the enactment of zoning changes through referendum does not violate due process under the federal constitution. Thus, referendum could be applied to zoning changes since the power of referendum is reserved to the people of Ohio in its constitution.

5 Sections 3-401 and 3-402, Article DI, Chapter 4 of the Charter provides:

Section 3-401. Declaration—

1. Power. The power of electors to propose and adopt ordinances shall be the initiative power.

2. Limitation. The initiative power shall not extend to any ordinance authorizing or repealing the levy of taxes, the appropriation of money, the issuance of bonds, the salaries of county employees or officers, or any matter governed by collective bargaining contracts.

Section 3-402. Procedure for Enactment and Adoption—

1. Petition. An ordinance may be proposed by petition, signed by qualified electors equal in number to at least ten percent of the entire vote cast for mayor in the last preceding mayoral election.

2. Form of Petition. Each elector signing such petition shall add to the signature, the elector’s printed name, residence and the date of signing.

3. Affidavit on Petition. Signatures may be on separate sheets, but each sheet shall have appended to it the affidavit of some person, not necessarily a signer of the petition, that, to the best of the affiant’s knowledge and belief, the persons whose signatures appear on the sheet are qualified electors of the city, that they signed with the full knowledge of the contents of the petition and that their residences are correctly given.

4. Proposed Ordinance. Such petition shall set forth the proposed ordinance, or a draft of the proposed ordinance may be attached and made part of such petition.