There is no common law marriage in Hawaii but Hawaii does recognize as a and Pennsylvania) allowing those established before a certain date to be. Plaintiffs-Appellants Hi Kai Investment, Ltd., and Marshall Realty, Ltd. that as of the date possession is recovered, to be more in line with the case law and the provided by the laws of the State or fixed by Hawaiian judicial precedent. P.2d (). KAISER HAWAII KAI DEVELOPMENT COMPANY, a Nevada corporation, and Kaiser Development Company, a California corporation .
Original Roy's, Hawaii Kai
The citizens voiced their concerns relative to the housing development in a series of public meetings and hearings before the City Department 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. 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.
Chartergathered the necessary signatures to place the initiative proposals on the ballot for vote by the electorate of the City on November 8, 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, 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. The issue before this court is whether the initiative proposals adopted by the electorate of the City on November 8, 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.
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.
- Kaiser Hawaii Kai Dev. v. Honolulu
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.
Original Roy's, Hawaii Kai Restaurant - Honolulu, HI | OpenTable
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. 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. 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.
Hi Kai Inv. v. ALOHA FUTONS BEDS
Township of Livington, N. In Township of Sparta v. Zoning is intended to be accomplished in accordance with a comprehensive plan and should reflect both present and prospective needs of the community. 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.
Similarly, the Washington Supreme Court stated in Leonard v.Exploring Love with Matchmaking Hawaii
City of Bothell, 87 Wash. 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.
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 Enterprises, U. We, therefore, hold that the Nukolii case is inapposite. Inwhen 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 Initiative was not available in the City and County of Honolulu until 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. Associated Home Builders v. City of Livermore, 18 Cal. Sincethere 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 chapterin 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. City and County of Honolulu, 70 Haw. Moreover, the concept of legislation by initiative was debated and rejected at the Constitutional Conventions ofand Appellant City contends that the Charter provision which permits zoning by initiative is superior to contrary state statute.
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.
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 and the Hawaii State Planning Act in See supra at p.
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. When the Supreme Court of Hawaii divests the people of the City and County of Honolulu of a right granted under the City's charter, it owes them a logical explanation for the action.
In the majority's view, "[t]he issue before this court is whether the initiative proposals adopted by the electorate of the City on November 8, validly amended the land use development plan and zoning maps of the City. The majority begins its discussion of the issue on appeal by reiterating the precept that "[t]he duty of this court in interpreting statutes is to ascertain and give effect to the intention of the legislature. The opinion then cites two decisions issued by the Superior Court of New Jersey and one issued by the Supreme Court of Washington, proclaiming these cases support the reasoning of the majority and quoting dicta selectively to buttress its theme that "initiative is inconsistent with the goal of long range comprehensive planning.
The New Jersey cases arose from the employment of initiative and referendum by the townships of Sparta and Spillane respectively in amending their zoning ordinances. Although a statute permitted municipalities to adopt either process as a means to encourage public participation in municipal affairs, the Superior Court ruled neither could be employed in effecting zoning changes because the State Zoning Act was "specific in detailing the manner in which zoning ordinances may be amended.
Township of Livingston, N. On appeal, Landlords argue that the district court erred 1 when it denied Landlords full damages for Tenants's breach of the lease, as measured by lost rents for the unexpired lease term, subject to mitigation, and 2 when it denied Landlords recovery of accelerated rent which "was due and had accrued under the [l]ease contract prior to the entry of the judgment for possession. Although the district court entered no formal findings of fact FOF or conclusions of law COLit did draw legal conclusions that are reviewed de novo.
A COL is not binding upon an appellate court and is freely reviewable for its correctness. We review these arguments in light of: Pacific Construction, 54 Haw.
Should Landlord at any time terminate this Lease for any breach in addition to any other remedies it may have, it may recover from Tenant all damages it may incur by reason of such breach, including the cost of recovering the Premises, reasonable attorneys' fees and the amount of rent and charges equivalent to Rent reserved in this Lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord, and Landlord shall thereafter pay to Tenant, at such time or times as Landlord shall be in receipt of the same, the Rent for the Premises for the remainder of the stated term collected from tenants thereafter using the premises, up to the amount of the Rent reserved which has theretofore been collected from Tenant, less costs of reletting.
Cho Mark Oriental Food v. Moreover, the "construction and the legal effect to be given a contract is a question of law freely reviewable by an appellate court. In this case, the lease provides that damages include "charges equivalent to Rent reserved in th[e] Lease for the remainder of the stated term Tenants claim, however, that Landlords, by suing for possession under HRS Chapterwaived their right to recover damages.
Tenants also assert that enforcement of sections Moreover, the primary duty of this court is to determine and give full effect to the intent of the legislature. We discern the intent of the legislature primarily from the language of the statute, "[a]lthough we may consider sources other than the language of the statute itself.
The Senate Judiciary Committee noted that: Under the present laws a party must bring an action for summary possession and then a separate action for rents, profits and damages.
There is no reason why the actions should not be consolidated, as this Bill proposes. Based on the foregoing, we hold that HRS Chapter does not preclude a landlord from joining a breach of contract action, seeking damages as measured by future rent, with a summary possession action.
Public policy also favors this conclusion.
This encourages a waste of resources, not only those of the litigants, but those of the court as well. Moreover, it is usually in society's interest to encourage the use of rental property, as opposed to allowing it to remain idle. The rules for awarding damages in the context of abandonment and breach by the tenant should discourage, rather than encourage, economic and physical waste.
To hold that a landlord, injured by a breaching tenant, is precluded by HRS Chapter from recovering damages flowing from the breach, would be to abrogate the common law absent clear legislative intent and to place this court's imprimatur of approval on economic, physical, and judicial waste.
In the alternative, Tenants claim that Landlords cannot have full possession of the premises, collect future "rent," and simultaneously preclude Tenants from occupying the premises for the remainder of the lease term.
Hawaii Age of Consent & Statutory Rape Laws
Landlords, however, seek contract damages, not "rent" as such. Under the common law, if a tenant breaches a lease, a landlord may: Under the first option, the landlord must mitigate damages. Termination of the tenancy releases the tenant from lease obligations, including the payment of rent.
A landlord, however, still may recover damages for breach of contract. Despite this rule, Tenants argue that damages should not be awarded in this case because they are speculative and uncertain. Under the lease, future unpaid rent less mitigation is the measure of damages to be used in the event of a breach by Tenants. Other jurisdictions agree with this formula.