Presentation for American Institute of Certified Planners (AICP) law credits at the 2015 Hawaii Congress of Planning Officials (HCPO). Pleasentation includes a overview of Hawaii's State Planning Act, implementing regulations, and recent case law. By Jesse K. Souki, Esq.

1. 2015 Hawaii Congress of Planning Officials
AICP - Law
Jesse K. Souki, Esq.
Of Counsel, Imanaka Asato LLLC
October 15, 2015

2. Statewide Land Use Framework
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3. Public Trust
• Article XI, Section 1. For the benefit of present and
future generations, the State and its political
subdivisions shall conserve and protect Hawaii's
natural beauty and all natural resources, including
land, water, air, minerals and energy sources, and shall
promote the development and utilization of these
resources in a manner consistent with their
conservation and in furtherance of the self-sufficiency
of the State.
All public natural resources are held in trust by the
State for the benefit of the people.
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4. Statewide Planning Act
HRS Chapter 226
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
•Zoning
•SMA Permit
•District Boundary
Amendments
State programs
•CIP
•CZM
•LUC
•BLNR
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5. State Land Use Classifications
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6. State Land Use Law
HRS 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
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7. State Land Use Law
5-Year Boundary Review, HRS §205-18
Purpose
• Review of the classification and districting of all lands in
the State.
Implementation Mechanisms
• Focus efforts on reviewing Hawaii state plan and
county general and community/development plans
• Where does it make sense to expand or contract
districts?
• Long-range, statewide land use planning effort.
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8. State Land Use Law
DBAs, HRS §205-4.5
Purpose
• Allow reclassification of lands based on criteria.
Implementation Mechanisms
• Conformance with State Plan
• Preservation/maintenance of important natural systems
or habitats
• Maintenance of valued natural resources
• Maintenance of other natural resources relevant to
Hawaii's economy
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9. State Land Use Law
IAL, HRS §§205-41, et seq.
Purpose
• Identify and plan for the maintenance of a strategic agricultural land resource
base
• Support a diversity of agricultural activities and opportunities
• Expand agricultural income and job opportunities
• Increase agricultural self-sufficiency for current and future generations
Implementation Mechanisms
• LUC Declaratory Order
• Voluntary Petitions
• County Mapping
• State Mapping
• Various criteria
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10. State Land Use Law
Special Permits, HRS §205-6
Purpose
• Authorizes counties to allow “unusual and
reasonable uses” not allowed in the Agricultural
and Rural Districts.
Implementation Mechanisms
• Counties approve; subject to LUC approval >15 acs
• Conditions of approval to promote the
effectiveness and objectives of HRS chapter 205
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11. Coastal Zone Management Act
HRS 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
• Ocean Resources Management Plan
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12. Conservation District
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13. Conservation District Use Permit
HRS Chapter 183C
Purpose
• “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 L. 1994, c 270, pt of §1.
Implementing Mechanisms
• Defining Zones within the District
• Determining Allowed Uses
• Permits and Site Plan Approvals – No Permit Required, Site Plan
Approval, Director’s Approval Required, BLNR Approval Required
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14. What’s Allowed in the Conservation
District?
Protective Subzone
• Fishponds
• Agriculture and a single family
residence on Kuleana lands
• Public infrastructure
• Power generation from
renewable resources
Limited Subzone
• Agriculture
• Single Family Residence
• Educational/recreational
wilderness camps
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Resource Subzone
• Aquaculture
• Astronomy Facilities
• Commercial forestry
• Mining and extraction
General Subzone
• Open space and accessory structures—
no golf courses
• Uses consistent with General Subzone,
e.g., farming, flower gardening,
nurseries or orchards, grazing, and
facilities accessory to these uses
Special Subzone

15. Proposals Must be Consistent With:
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• Purpose of the conservation district & subzone
• Coastal Zone Management Act
• Use will not cause substantial adverse impact to
existing natural resources within the surrounding
area, community, or region
• Compatibility with surrounding area
• Preservation or improvement of physical and
environmental aspects of the land
• Subdivision will not increase intensity of uses
• Public health, safety, and welfare

16. HEPA Requirements
HAR § 11-200-12, Significance criteria
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• “Significant effect” or “significant impact” if proposed use:
– Involves an irrevocable commitment to loss or destruction of any natural or cultural resource;
– Curtails the range of beneficial uses of the environment;
– Conflicts with the state's long-term environmental policies or goals and guidelines as expressed in
chapter 344, HRS, and any revisions thereof and amendments thereto, court decisions, or executive
orders;
– Substantially affects the economic welfare, social welfare, and cultural practices of the community or
State;
– Substantially affects public health;
– Involves substantial secondary impacts, such as population changes or effects on public facilities;
– Involves a substantial degradation of environmental quality;
– Is individually limited but cumulatively has considerable effect upon the environment or involves a
commitment for larger actions;
– Substantially affects a rare, threatened, or endangered species, or its habitat;
– Detrimentally affects air or water quality or ambient noise levels;
– Affects or is likely to suffer damage by being located in an environmentally sensitive area such as a
flood plain, tsunami zone, beach, erosion-prone area, geologically hazardous land, estuary, fresh
water, or coastal waters;
– Substantially affects scenic vistas and viewplanes identified in county or state plans or studies; or,
– Requires substantial energy consumption.

17. Recent CDUP Related Cases
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• Kilakila `O Haleakala v. Board of Land and Natural
Resources
– Advanced Technology Solar Telescope (ATST)
– BLNR permit issued 2010 and again in 2012
– Heard on April 2, 2015
• Mauna Kea Anaina Hou v. Board of Land and
Natural Resources
– Thirty Meter Telescope (TMT)
– BLNR permit issued 2013
– Haw. Sct. Heard on August 27, 2015

18. Land Use Framework
County Implementation
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• General Plans
• Zoning
• Subdivision
• Permitting
• SMA
• DBAs and Special Permits under 15 acres

19. Source: The General Plan (1992 edition, amended in 2002).

20. Recent Variance Case
Surfrider Foundation v. Zoning Bd. of Appeals
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• Development of the 8-story Diamond Head Tower
in Waikiki
• Question before the Court:
– “Whether a variance granted for a proposed 26–story
hotel and residential tower that permitted a 74 percent
encroachment into the coastal height setback along the
Waikiki shoreline was properly issued.”
• 100 foot setback from the certified shoreline
• Transitional height setback

21. Variance Criteria
Honolulu City Charter § 6–1517
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• Applicant must establish unnecessary hardship:
– The applicant would be deprived of the reasonable
use of such land or building if the provisions of the
zoning code were strictly applicable;
– The request of the applicant is due to unique
circumstances and not the general conditions in the
neighborhood, so that the reasonableness of the
neighborhood zoning is not drawn into question; and
– The request, if approved, will not alter the essential
character of the neighborhood nor be contrary to the
intent and purpose of the zoning ordinance.

22. Applicant Arguments
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• Deprived Reasonable Use
– Strict application would reduce the buildable portion of the property
to approximately 33% of the whole
– 1965 Beach Agreement
• Unique Circumstances
– Its proposed project avoids the historic Banyan Wing
– Parcel shape and dimensions
– 1965 Beach Agreement
• Essential Character of Neighborhood/LUO Intent
– Waikiki densely developed, urbanized area, filled with large hotels,
condominiums, and mixed-use projects
– Other projects encroach
– Consistent with WSD--rejuvenation and revitalization, people oriented
landscape
– Beach Maintenance Project will mitigate encroachment

23. “Reasonable Use”
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• Not necessarily the use most desired by the
property owner
• Inability to make reasonable use of its land or building
without the variance
• Economic viability must be supported with financial
data in the record
– Options included renovation and rebuilding the conforming
structure
• PD-R does not apply to coastal height setbacks
• Setback must be measured from current certified
shoreline

24. “Unique Circumstances”
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• Narrow lot does not alone justify the variance
• Not legal requirements that prescribe how a
parcel may be used and developed
• Not setbacks, shoreline, 1965 Beach
Agreement, or the Beach Maintenance Project
• Record did not show how narrowness of the lot
created unique circumstances

25. Essential Character of the Neighborhood and
Intent and Purpose of Zoning Ordinance
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• The WSD was adopted in response “to the rapid
development of the 1960s and 1970s, and the
changes produced by that development”
• Nonconforming uses and structures should not
serve as the basis for further nonconformance
• Director should have evaluate whether 74
percent encroachment into the Coastal Height
Setback was contrary to the intent and purpose
of the WSD and the Coastal Height Setback not
whether the Project was consistent with three of
the fourteen WSD “objectives.”

26. Transit Oriented Development
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27. TOD Zoning Maps
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• Zone Change Proposal for Waipahu and West
Loch Station Areas
– City Council approved the Waipahu Neighborhood
TOD Plan on April 16, 2014

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30. TOD Special District
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• TOD Special District (SD)
– Applies to entire rail alignment within 1/4- to 1/2-
mile of the rail stations
– Projects less than 1 acre and compliant with SD
standards do not need a SD permit
– Modifying SD standards require a permit, e.g.,
height/density bonuses
– PD-T Permit allows the most flexibility

31. References
• Transit-Oriented Development Proposed Special District Regulations, Sept. 14,
2015,
http://www.honoluludpp.org/Portals/0/pdfs/planning/ProjectInfo/PC_SD_Submitt
al.pdf.
• Transit-Oriented Development Proposed Changes in Zoning and Height Limits, Sept.
14, 2015,
http://www.honoluludpp.org/Portals/0/pdfs/planning/ProjectInfo/PC_ZC_Submitt
al.pdf.
• Land Use Cases to Watch: Hawaii Supreme Court, April 22, 2015,
http://www.hilanduselaw.com/2015/04/land-use-cases-to-watch-hawaii-
supreme.html.
• Developers Have an Option for Transit-Oriented Development (TOD) with Interim
Permit, Feb. 12, 2015, http://www.hilanduselaw.com/2015/02/developers-have-
option-for-transit.html.
• Transit-Oriented Development Resources, Dec. 8, 2014,
http://www.hilanduselaw.com/2014/12/transit-oriented-development-
resources.html.
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