State Land Use and Planning Law Update

Hawaii State Congress of Planning Officials

September 20, 2013

Presentation by

Jesse K. Souki, DirectorOffice of PlanningState of Hawaii

State Office of PlanningHawaii Revised Statutes Chapter 225M

Why was the Office created?• Fix responsibility and accountability to

successfully carry out statewide planning programs, policies, and priorities

• Improve the efficiency and effectiveness of the operations of the executive branch

• Ensure comprehensive planning and coordination to enhance the quality of life of the people of Hawaii

Source: HRS §225M-1.

Why Plan?• Meet the physical, economic, and social needs of

Hawaii's people

• Provide for the wise use of Hawaii's resources in a coordinated, efficient, and economical manner

• Conserve natural, environmental, recreational, scenic, historic, and other limited and irreplaceable resources which are required for future generations

Source: HRS §225M-1.

What does OP do?1. State comprehensive planning and program coordination

2. Strategic planning

3. Planning coordination and cooperation

4. Statewide planning and geographic information system (GIS)

5. Land use planning

6. Coastal and ocean policy management

7. Regional planning and studies

8. Regional, national, and international planning

Source: HRS §225M-2.

Regulatory Activities• Some SMA Approvals. Reviewing and issuing of

special management area permits for projects within the Hawaii community development districts

• CZM Determinations. Reviewing and issuing of Coastal Zone Management (CZM) Act federal consistency determinations for certain federal actions and activities

• LUC Recommendations. Developing and presenting the position of the State in all boundary change petitions and proceedings before the Land Use Commission

Source: HRS Chapters 205, 205A, and 225M.

Key Policies that Guide OP

•Hawaii State Planning Act•State Land Use Law•Coastal Zone Management Act

Hawaii State Planning ActHawaii Revised Statutes Chapter 226 (1978)

• Serves as a guide for the future long-range development of the State

• Identifies the goals, objectives, policies, and priorities for the State

• Provides a basis for determining priorities and allocating limited resources, such as public funds, services, human resources, land, energy, water, and other resources

• Improves the coordination of federal, state, and county plans, policies, programs, projects, and regulatory activities

• Establishes a system for plan formulation and program coordination to provide for an integration of all major state, and county activities

A STATEWIDE PLANNING SYSTEM

State Land Use LawHawaii Revised Statutes Chapter 205

• Purpose• “preserve, protect and encourage the

development of the lands in the State for those uses to which they are best suited for the public welfare[.]” See L. 1961, c 187, § 1.

• Implementation Mechanisms• 5-Year Boundary Review• District Boundary Amendments• Important Agricultural Lands

Designation• State Special Use Permits

State Land Use Classifications

1969

U3%

C49%

A48%

R0%

2011

U5%

C48%

A47%

R0%

Coastal Zone Management ActHawaii Revised Statutes Chapter 205A

• Purpose• “provide for the effective management,

beneficial use, protection, and development of the coastal zone.” See L. 1977, c 188, § 1.

• Implementing Mechanisms• Special Management Area Permits• Federal Consistency• Comprehensive Planning and

Coordination

Special Management Areas

Measures that Passed the 27th LegislatureThat Affect Hawaii Land Use & Planning Laws

Act 12, SB479 SD2 RELATING TO THE MEMBERSHIP OF A METROPOLITAN PLANNING ORGANIZATION.

• Updates the membership of the Metropolitan Planning Organization policy committee

• Add 14th Member:• “One member who shall be the director of

the authority for rapid or mass transportation, or a successor agency thereof, that operates public transportation on that island.” See HRS §279E-3.

• Oahu MPO – required for federal funding

• July 6, 2012, P.L. 112-141, Moving Ahead for Progress in the21st Century Act (MAP-21)• MPO’s must include, “representation by

providers of public transportation.”

Act 38, HB1133 SD2 RELATING TO PUBLIC LAND.

• Repeals HRS Chapter 171C, relating to the Public Land Development Corporation

• Transfers PLDC assets to the DLNR

• Purpose: “. . . to create a vehicle and process to make optimal use of public land for the economic, environmental, and social benefit of the people of Hawaii.”

• Reason for Repeal• “achieving this goal requires a greater

respect for existing laws and procedures and greater assurance”

• “county councils of Kauai and Maui have adopted resolutions urging the legislature to abolish”

Act 55, SB327 SD1 HD1 RELATING TO AGRICULTURE.

• Amends the Hawaii State Planning Act (HRS Chapter 226)

• Purpose: To specifically support the purchase and consumption of locally grown food and food products.

• Adds to Objectives and Policies (HRS §226-7)• Strengthen diversified agriculture by developing an

effective promotion, marketing, and distribution system between Hawaii's food producers and consumers in the State, nation, and world.

• In addition to the State's priority on food, expand Hawaii's agricultural base by promoting growth and development of flowers, tropical fruits and plants, livestock, feed grains, forestry, food crops, aquaculture, and other potential enterprises.

• Promote economically competitive activities that increase Hawaii's agricultural self-sufficiency, including the increased purchase and use of Hawaii-grown food and food products by residents, businesses, and governmental bodies as defined under section 103D-104.

• Adds to Priority Guidelines (HRS §226-103)• Encourage residents and visitors to support Hawaii's farmers

by purchasing locally grown food and food products.

Act 85, SB1171 SD1 HD2RELATING TO THE REVIEW OF HISTORIC PRESERVATION PROJECTS.

• Amends HRS Chapter 6E (Historic Preservation) to allow the phased review of certain projects by SHPD

• Ensures consistency between state and federal law

• "Programmatic agreement" means a document that sets forth the terms of a formal, legally binding agreement and establishes a process for consultation, review, and compliance with federal laws.

• When Can Phased Review Be Used?• The proposed project consists of corridors or

large land areas;• Access to properties is restricted; or• Circumstances dictate that construction be

done in stages.

Act 86, SB1207 HD2 CD1 RELATING TO TRANSPORTATION.

• Adds Exemption to HRS Chapter 266 related to Harbors• “Exemption from conservation district permitting

and site plan approval requirements. Notwithstanding any law to the contrary, all work involving submerged lands used for state commercial harbor purposes shall be exempt from any permitting and site plan approval requirements established for lands in a conservation district.”

• DOT Harbor Jurisdiction• “. . . commercial harbors and roadsteads, and all

commercial harbor and waterfront improvements belonging to or controlled by the State, and all vessels and shipping within the commercial harbors and roadsteads shall be under the care and control of the department of transportation.” See HRS §266-1.

• Conservation District, HRS Chapter 183C• Purpose: “. . . to conserve, protect, and preserve the

important natural resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare.” See HRS §183C-1.

Act 120,HB17 HD1 SD2 RELATING TO COASTAL AREAS.

• Permanent extension of Act 160, Session Laws of Hawaii 2010

• Ensures public lateral access along the shoreline by making permanent the requirement that landowners remove human-induced, enhanced, or unmaintained vegetation interfering with such access

• Maintains DLNR's enforcement duty to maintain such access

• Originally passed in response to Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006).

Act 264,HB635 HD2 SD1 CD1RELATING TO BROADBAND.

• Amends HRS Chapters 27 (State Functions and Responsibilities) and 46 (County Organization and Administration)

• Broadband-related permit applications will be deemed approved unless • The State and counties take action within

sixty days (60)• The State takes action within one hundred

forty-five (145) days re conservation district use permits

• Application must be complete. If incomplete, agency must notify applicant within ten (10) days of “submittal”

Act 151,SB305 SD1 HD1 CD1 RELATING TO DEVELOPMENT OF PUBLIC HOUSING.

• Amends HRS 356D-11 (Hawaii Public Housing Authority)

• “HPHA efforts focus on developing affordable rental and supportive housing, public housing and the efficient and fair delivery of housing services to the people of Hawaii.” See http://www.hcdch.hawaii.gov.

• Bill Allows Authority to • develop commercial and industrial properties and sell

or lease other properties • if it determines that the uses will be an integral part of

the public housing development or a benefit to the community in which the properties are situated.

• The Authority may designate any portions of the public housing development for commercial, industrial, or other use

• Net proceeds of all sales or leases, less costs to the authority, shall be deposited in the public housing revolving fund

Act 233,SB454 SD1 HD1 RELATING TO WATER CONSERVATION.

• Purpose: To encourage the widespread reuse of gray water to irrigate lawns and gardens.

• Amends HRS Chapter 342D (Water Pollution)

• "Gray water" means • any untreated wastewater that has not

come into contact with toilet waste• used water from bathtubs, showers, and

bathroom wash basins and water from clothes washers and laundry tubs

• Authorizes DOH to allow expanded uses of grey water

Legislative Trends• Exemptions vs. Streamlining

• State vs. Federal Permitting

• Agriculture and Food Security

• Climate Change Adaptation

• Erosion of Administrative Law

Recent Hawaii Court DecisionsThat Affect Hawaii Land Use & Planning Laws

Kaleikini v. Yoshioka, SCAP-11-0000611, Haw. S. Ct., May 2, 2013.

IT PAYS TO LITIGATE

• Awarded Appellate Attorney's Fees under Private Attorney General Doctrine

• Court found in Kaleikini's favor on her HRS chapter 6E claims in Kaleikini v. Yoshioka, 128 Haw. 53 (2012).

• Private attorney general doctrine• Strength or societal importance of the public

policy vindicated by the litigation, • Necessity for private enforcement and the

magnitude of the resultant burden on the plaintiff, and

• Number of people standing to benefit from the decision.

• Awarded plaintiffs $41,192.00 in attorney's fees and $343.00 in costs against the City

• Request for attorney's fees against the State barred by sovereign immunity

Learn more at http://hilanduse.blogspot.com/2013/05/hawaii-supreme-court-awards-appellate.html.

Kauai Springs v. Planning Commission of the County of Kauai, ICA No. 29440, April 30, 2013.

ADD THIS TO YOUR LIST OF LEGISLATIVE CRITERIA

• Whether “the Planning Commission had public trust obligations to review Kauai Springs' use of water[.]”

• “Whether the Planning Commission applied the proper standards and criteria in reviewing the application for the permits.”

• Kauai Planning Commission is charged with evaluating land use proposals based on consistency with existing zoning, allowed uses, and conditions that mitigate impacts from uses not permitted within the agricultural zone.

• ICA determined that under Article XI, section 1 of the Hawaii Constitution, the Commission's duties extend to public trust resources.

• ICA’s Test• Commission should make appropriate assessments, and • Require reasonable measures to protect the water

resources at issue.

• Commission must give the request a higher level of scrutiny because public trust resources were to be used for economic gain

Learn more http://hilanduse.blogspot.com/2013/05/intermediate-court-of-appeals-creates.html.

Kanahele v. Maui County Council, No. SCWC-29649, Haw. S. Ct., Aug. 8, 2013.

AIN’T NO SUNSHINE – TECHNICALLY

• Two bills related to the development of Wailea 670 project

• Whether the ICA erred in holding that the recessing and reconvening of the October 18, 2007 Committee meeting and the February 8, 2008 Council meeting comported with the notice and public oral testimony requirements of the Sunshine Law.• A single continuance without posting a new agenda

and without accepting public oral testimony at every reconvened meeting does not violate Sunshine Law

• Whether the Sunshine Law allows councilmembers to circulate written memoranda among all other members, in which members present proposed actions, include justifications for the proposals, and seek ‘favorable consideration’ of the proposals.• Violates Sunshine Law• It does not violate final passage of the bills.

Learn more at http://hilanduse.blogspot.com/2013/08/aint-no-sunshine-when-youre-not-giving.html.

Koa Ridge/Waiawa• Waipio and Waiawa

• 768 acs.

• Location• East of H2• East of Waipio Interchange• Adjacent to NW of proposed Waiawa Ridge Development

• 5000 residential units; Mixed use project

• Majority Prime AG; Mostly LSB A and B

• Aloun Farms provided with alternate land

Ho‘opili• West Oahu

• 1525 acs

• 11750 residential units; Mixed Use

• 84% Prime AG; 1/3 LSB A

• Aloun Farms and others will be relocated during build out

• Ho‘opili urban agriculture initiative• Community garden sites • Farmers' markets throughout the development• 15% of urbanized area preserved for AG uses

Koa Ridge

• Koa Ridge (1st DBA)• Can a Commissioner Vote as a Holdover?• Judge Sakamoto said No • ICA Reversed

• Significant Facts and Findings of ICA• Commissioner Kanuha failed to obtain

confirmation for 2nd term• Petition approved 7-1• Order adopted 6-0

• ICA Holding• No disqualification under plain language of

HRS sec. 26-34(a), which limits board appointments to • 2 terms, and • Not longer than 8 consecutive years.

• On appeal to Supreme Court

Ho‘opili and Koa Ridge II Appeal

• Koa Ridge (2nd DBA)• Judge Nishimura Upheld• On appeal to ICA

• Ho‘opili• Judge Nishimura Upheld• On appeal to ICA

• Significant Findings of Nishimura• Art. XI, sec. 3, is not self executing• “conserve and protect agricultural lands”

• Act 183, codified as HRS sections 205-41 – 205-52• DBA does not involve IAL• Act 183 specifically excludes the lands at issue since

those lands have been designated for urban uses• Act 183 did not impose a moratorium on

reclassifications of land• The reclassification meets the DBA criteria based on

the record• Reasonably necessary for urban growth• Will not substantially impair actual or potential

agricultural production in the vicinity, county, or state

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ResourcesOffice of Planning

• (808) 587-2846

• jesse.k.souki@dbedt.hawaii.gov

• planning.hawaii.gov

• www.facebook.com/OfficeofPlanning.HIgov

• twitter.com/PlanningHIgov

Other

• Hawaii Land Use and Policy Blog, hilanduse.blogspot.com

• State Land Use Commission, luc.hawaii.gov

• Court Opinions, www.courts.state.hi.us/opinions_and_orders/index.html