Thanks to Kona Blogger Aaron Stene for sending this next item my way, a follow up to the previous two days’ reports from West Hawaii Today (posted here and here) about Hawaii County’s so-called “fair share” exaction system. In “Council reaffirms belief in fair share legality,” WHT reports:
The county’s Corporation Counsel spent two-and-a-half hours of a four-hour-long executive session Wednesday apparently trying to convince the County Council the County’s fair share cost system is legal.
The effort apparently worked.
Council Chairman J Yoshimoto, Hilo, said after the meeting the “Corporation Counsel explained to us the fair share system is legal.”
He said he does not expect the council to hold another executive session on the subject any time soon, as information presented by Corporation Counsel during the meeting clearly showed the fair share cost system is legal.
The county has for years used the system, which is a device that requires residential developers to pay certain fees to cover the impacts their projects have on county infrastructure.
Kohala Councilman Pete Hoffmann, however, believes the system is illegal and should be replaced with a different impact fee system that conforms to state laws.
. . .
Hoffmann’s concerns are rooted in a legal decision on a condemnation proceeding handed down by 3rd Circuit Court Judge Ronald Ibarra in 2007 that states the fair share cost system is illegal.
Disclosure: my Damon Key colleagues and I represent the landowner in that case.
The issue is whether the County’s system of exacting payments from landowners who seek County permission to develop their land to pay for the impacts their proposals may have on roads, schools, and other items covered by the term “infrastructure” is a legitimate exercise of the County’s general power to regulate land uses, or whether it is an “impact fee.” State law permits counties to impose “impact fees,” but only if the counties have first enacted an ordinance setting forth how the fees are assessed and imposed. See Haw. Rev. Stat. § 46-142. The County of Hawaii has not enacted such an ordinance. State law defines “impact fees” as follows:
“Impact fees” means the charges imposed upon a developer by a county or board to fund all or a portion of the public facility capital improvement costs required by the development from which it is collected, or to recoup the cost of existing public facility capital improvements made in anticipation of the needs of a development.
Haw. Rev. Stat. § 46-141. “Public facility capital improvement costs” is also defined by section 46-141:
“Public facility capital improvement costs” means costs of land acquisition, construction, planning and engineering, administration, and legal and financial consulting fees associated with construction, expansion, or improvement of a public facility. Public facility capital improvement costs do not include expenditures for required affordable housing, routine and periodic maintenance, personnel, training, or other operating costs.
Until such time as the County Council discloses its reasons for concluding that the fees collected under the “fair share” system are not “impact fees,” for “public facility capital improvement costs,” we’ll just have to speculate why the County believes that if it looks like a duck and quacks like a duck, it isn’t a duck.