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State Land
Use and
Planning
Law Update
Hawaii State Congress
of Planning Officials
September 20, 2013
Presentation by
Jesse K. Souki, Director
Office of Planning
State of Hawaii
State
Office of
Planning
Hawaii 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
Act
Hawaii 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
Part I: Overall Theme, Goals, Objectives and Policies
Population
Economy
Physical
environment
Facility systems
Socio-cultural
advancement
Part III: Priority Guidelines
Economic
Population Growth
Crime and criminal
justice
Affordable housing
Education
Sustainability
Climate Change
Adaptation
Part II: Statewide planning system
Functional plans
•Define and implement Parts
I and II
•Identify priority issues
•Implementing actions
County general plans
•Desired population
•Physical development
patterns
•Further define Parts I and II
State programs
•State budget
•Land Use Commission
•Board of Land and Natural
Resources
State Land
Use Law
Hawaii 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
U
3%
C
49%
A
48%
R
0%
2011
U
5%
C
48%
A
47%
R
0%
Land Use Law Update Presentation to the Hawaii State Congress of Planning Officials 2013
Land Use Law Update Presentation to the Hawaii State Congress of Planning Officials 2013
Coastal Zone
Management
Act
Hawaii Revised Statutes
Chapter 205A
• Purpose
• “provide for the effective
management, beneficial
use, protection, and development of the
coastal zone.” SeeL. 1977, c 188, § 1.
• Implementing Mechanisms
• Special Management Area Permits
• Federal Consistency
• Comprehensive Planning and
Coordination
Special Management Areas
Measures that Passed the 27th Legislature
That 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 HD2
RELATING 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 CD1
RELATING 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.”
Seehttp://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 Decisions
That 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 (1stDBA)
• 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 (2ndDBA)
• 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
Resources
Office of Planning
• (808) 587-2846
• jesse.k.souki@dbedt.ha
waii.gov
• planning.hawaii.gov
• www.facebook.com/Off
iceofPlanning.HIgov
• twitter.com/PlanningH
Igov
Other
• Hawaii Land Use and
Policy
Blog, hilanduse.blogspo
t.com
• State Land Use
Commission, luc.hawaii
.gov
• Court
Opinions, www.courts.s
tate.hi.us/opinions_and
_orders/index.html
35

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Land Use Law Update Presentation to the Hawaii State Congress of Planning Officials 2013

  • 1. State Land Use and Planning Law Update Hawaii State Congress of Planning Officials September 20, 2013 Presentation by Jesse K. Souki, Director Office of Planning State of Hawaii
  • 3. 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.
  • 4. 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.
  • 5. 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.
  • 6. 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.
  • 7. Key Policies that Guide OP •Hawaii State Planning Act •State Land Use Law •Coastal Zone Management Act
  • 8. Hawaii State Planning Act Hawaii 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
  • 9. A STATEWIDE PLANNING SYSTEM Part I: Overall Theme, Goals, Objectives and Policies Population Economy Physical environment Facility systems Socio-cultural advancement Part III: Priority Guidelines Economic Population Growth Crime and criminal justice Affordable housing Education Sustainability Climate Change Adaptation Part II: Statewide planning system Functional plans •Define and implement Parts I and II •Identify priority issues •Implementing actions County general plans •Desired population •Physical development patterns •Further define Parts I and II State programs •State budget •Land Use Commission •Board of Land and Natural Resources
  • 10. State Land Use Law Hawaii 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
  • 11. State Land Use Classifications 1969 U 3% C 49% A 48% R 0% 2011 U 5% C 48% A 47% R 0%
  • 14. Coastal Zone Management Act Hawaii Revised Statutes Chapter 205A • Purpose • “provide for the effective management, beneficial use, protection, and development of the coastal zone.” SeeL. 1977, c 188, § 1. • Implementing Mechanisms • Special Management Area Permits • Federal Consistency • Comprehensive Planning and Coordination
  • 16. Measures that Passed the 27th Legislature That Affect Hawaii Land Use & Planning Laws
  • 17. 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.”
  • 18. 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”
  • 19. 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.
  • 20. Act 85, SB1171 SD1 HD2 RELATING 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.
  • 21. 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.
  • 22. 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).
  • 23. Act 264, HB635 HD2 SD1 CD1 RELATING 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”
  • 24. 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.” Seehttp://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
  • 25. 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
  • 26. Legislative Trends • Exemptions vs. Streamlining • State vs. Federal Permitting • Agriculture and Food Security • Climate Change Adaptation • Erosion of Administrative Law
  • 27. Recent Hawaii Court Decisions That Affect Hawaii Land Use & Planning Laws
  • 28. 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.
  • 29. 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.
  • 30. 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.
  • 31. 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
  • 32. 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
  • 33. Koa Ridge • Koa Ridge (1stDBA) • 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
  • 34. Ho‘opili and Koa Ridge II Appeal • Koa Ridge (2ndDBA) • 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
  • 35. Resources Office of Planning • (808) 587-2846 • jesse.k.souki@dbedt.ha waii.gov • planning.hawaii.gov • www.facebook.com/Off iceofPlanning.HIgov • twitter.com/PlanningH Igov Other • Hawaii Land Use and Policy Blog, hilanduse.blogspo t.com • State Land Use Commission, luc.hawaii .gov • Court Opinions, www.courts.s tate.hi.us/opinions_and _orders/index.html 35

Editor's Notes

  1. Our Boss: The Governor What: Maintain an overall framework to guide the development of the State of Hawaii.How: Continuous process of comprehensive, long-range, and strategic planning.
  2. We are a planning and policy office.Statewide coordination, e.g., Runoff issues, Community outreach, Interagency planning issues
  3. BIA and DOT asked that the statute be limited to “existing” harbors. The legislature did not add that language.EPA, 343, Army CorpsPublic Trust, Kauai Springs v. Planning Commission of the County of Kauai, requires decision-makers to make appropriate assessments and require reasonable measures to protect public trust resources pursuant to Article XI, section 1 of the Hawaii Constitution.
  4. 1525 acs11750 residential units84% Prime AG1/3LSB AAloun Farms and others will be relocated during build out15% preserved for AG usesHo‘opili urban agriculture initiativeCommunity garden sites Farmers' markets throughout the development.