Agenda - Planning Commission - 03/05/2015

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January 25, 2015 1 Volume 9 1 Issue 2 Zoning Bulletin such representations [made to LUC by the petitioner], [the LUC] shall is- sue and sever upon the party bound by the condition an OSC why the prop- erty should not revert to its former land use classification or be changed to a more appropriate classification." They argued that they had substantially commenced use of the property and therefore LUC's reversion was improper. DECISION: Judgment of circuit court affirmed in part. The Supreme Court of Hawai'i agreed with Bridge and DW. It held that since DW and Bridge had substantially commenced use of the land in ac- cordance with their representations, the LUC erred in reverting the prop- erty without complying with the requirements of HRS § 205-4. The court explained that once the LUC issues an OSC, the procedures it must follow before reverting land depend upon whether the petitioner has substantially commenced use of the land. While HRS § 204(g) gives the LUC broad authority to impose conditions on boundary amendments, the court noted that enforcement of those conditions was expressly left to counties under HRS § 205-12. HRS § 205-4(g) provides the one exception to that general rule, allowing the LUC to revert property to its former land use condition when substantial commencement of the use of the land has not begun. Thus, where the petitioner has substantially commenced use of the land, the LUC is bound by the requirements of HRS § 205-4, which require the LUC to: find by a clear preponderance of the evidence that the reclassification is reasonable, not violative of HRS § 205-2, and consistent with the policies of HRS §§ 205-16 and 205-17 (HRS § 205-4(h)); obtain six votes in favor of the reclassification (HRS § 205-4(h)); and resolve the reversion or reclassification issue within 365 days (HRS § 205-4(g).) The court further clarified that the LUC may only revert property without fol- lowing those procedures when the petitioner has not substantially com- menced use of the property in accordance with its representations. Here, the court found that by the time the LUC reverted the property to the agricultural land use district, Bridge and DW had substantially com- menced use of the land in accordance with their representations. Specifi- cally, the court found that they had constructed sixteen townhouses on the property, cornrnenced construction of numerous other townhouses, and graded the site for additional townhouses and roads. At that point, more than $20 million had been spent on the project. The court further found that although Bridge and DW had substantially cornrnenced use of the land, the LUC failed to comply with the requirements of HRS § 205-4. Al- though its order reverting the property to the agricultural land.use district had explained how DW and Bridge had failed to comply with representa- tions made to the LUC, the LUC failed to make specific findings as to whether the reversion was "reasonable," not violative of HRS § 205-2, and consistent with the policies and criteria established under HRS §§ 205-16 and 205-17. Moreover, the LUC had failed to resolve the OSC within 365 days as required, but rather had taken several years to resolve it. Accordingly, because it had not complied with the requirements of HRS 4 2015 Thomson Reuters