Measures that Passed the 27th Legislature and Will Affect Hawaii's Statewide Land Use and Planning System

Natural Resources SectionHawaii State Bar AssociationMonthly Speaker Series

May 28, 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

Important Information & Caveats• Legislature’s Deadlines• May 2, 2013: Sine die

• Governor’s Deadlines• June 24, 2013: Notice of intent to veto deadline (35th day after

adjournment sine die)• July 9, 2013: Veto deadline (45th day after adjournment sine die)

• The legislature passed 293 bills.

• As of May 24, 2013, the Governor signed 86 bills into law

• The Governor has 207 bills before him for consideration

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.

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).

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”

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

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

• Impact of Recent Decisions• It Pays to Litigate: Kaleikini v. Yoshioka, HSCT awarded plaintiffs $41,192.00

in attorney's fees and $343.00 in costs• Public Trust is a State Constitutional Requirement: Kauai Springs v.

Planning Commission of the County of Kauai, ICA says decision-makers must make appropriate assessments and require reasonable measures to protect public trust pursuant to Article XI, section 1 of the Hawaii Constitution

Sources & Contact Information

Office of PlanningWeb: http://planning.hawaii.govFB: https://www.facebook.com/OfficeofPlanning.HIgov Twitter: https://twitter.com/PlanningHIgov

2013 Legislative Reports and Listshttp://www.capitol.hawaii.gov/advreports/main.aspx

Hawaii Land Use Law and Policyhttp://hilanduse.blogspot.com