Hawaii County Considers Second Planning Commission: Will it be Valid?

The County of Hawaii is moving closer to establishing two planning commissions for Hawaii County: one for the west and one for the east.

It would be the second county to have more than one planning commission in Hawaii. Maui County has separate planning commissions on Maui, Molokai, and Lanai, all of which have powers that include final authority of various permits. However, it is questionable whether having more than one planning commission in a county complies with state law.

Under Article VIII of Hawaii’s Constitution, the state legislature is authorized to create counties. As subdivisions of the state, counties have and may only exercise those powers conferred to them under general laws enacted by the state legislature. In 1963, the legislature, through HRS § 46-5, granted counties with populations of less than 100,000* the specific power “[t]o create a county planning commission.” Under HRS § 46-5, a planning commission has authority to do the following: (A) formulate a master plan providing for the future growth, development, and beautification of the county in its public and private buildings, streets, roads, grounds, and vacant lots; (B) formulate subdivision and zoning regulations; and (C) recommend the establishment of building zones.

It is evident by a plain reading of the statute that the legislature intended for counties to create “a”, or one, planning commission. Arguably, just one official county planning commission could carryout the functions listed in (A) through (B), supra. However, both commissions could be allowed to have final authority over certain permits under other state stautes; e.g., special management permits, where administrative authority is broadly delegated by the legislature to county agencies.

The above considerations do not appear to have been taken into consideration when the various Maui County commissions were created. If Hawaii County proceeds to give both planning commissions specific powers enumerated under HRS § 46-5, the validity of its actions could be challenged.

*Between 1960 and 1970 the population in the three counties, excluding Oahu, was under 100,000. So the law applied only to the Kauai, Maui, and Hawaii Counties.