LEED Isn't the Only Game in Town

As I wrote previously, the City and the state Office of Planning's attempts to impose mandatory LEED standards on residential homes is not a well thought policy. (See, Proposed LEED Mandate Fails, Working Group Created to Investigate Issue, City and County of Honolulu to Require All New Buildings to be LEED Platinum Certified by 2014, and Energy Efficiency Building Requirements: Hawaii’s Regulatory Maze.)

Most would agree that the policy goal of reducing our energy consumption is good, if not necessary, for society, but importing a third party rating system from abroad, untailored to the specific needs and restraints of Hawaii's unique market and environment would miss the mark and add to housing costs.

If LEED is imposed, it should be tailored to Hawaii with the input of stakeholders and the community and with incentives to help defray implementation costs. But more importantly, policymakers should consider incorporating other green building programs or other energy saving measures unique to Hawaii.

In the following quote from KHNL News, John Bendon of Green Building LLC talks about a home on Maui that is LEED Gold certified:

Yes, this is a $2.4 million home but Bendon says it's not that costly for an average home to go just as green.

He says to get a solar water heater, use energy efficient appliances and lighting and reduce your need for air conditioning.

"You can plant trees in the proper place. You can put a radiant barrier on your roof and reduce the heat gain in the attic," said Bendon.

Project leaders say they are simple concepts that, like the Good Home, can show what can be done today, and what may be done tomorrow.

There are two other green ratings systems in Hawaii - Energy Star and Hawaii BuiltGreen. LEED is the most stringent and is affiliated with the United States Green Building Council.

Source: Mari-ela David, Green Maui Home Gets National Attention, May 14, 2008, available at http://www.khnl.com/Global/story.asp?S=8319959.

What Came First: The Zoning or the State Land Use Designation?

In the heyday of zoning and state land use districting in Hawaii, the state land use commission (“LUC”) designated most of east Maui as state agriculture in August of 1964. A few months later, the County of Maui zoned much of that property for residential uses.

Flash-forward 40 years or so, a landowner wants to build a residential project on the above property. Neighbors grumble (for the usual anti-development reasons) and the County administration notices that the residential zoning is inconsistent with the state land use designation; therefore, the County administration’s position was that the zoning is void. Under HRS § 205-5, County zoning must be compatible with the state agricultural district—residential uses are generally not compatible.

The County’s conclusion was undeterred by the fact that after the inconsistent zoning designation, the landowner sought and was granted a state district boundary amendment to the state urban district in 2005. In other words, the property was technically consistent with County residential zoning since 2005.

The County’s argument, which failed under the scrutiny of Second Circuit Court Judge Joel August, was that the zoning was void ab initio since the initial zoning was inconsistent. Judge August’s order in favor of the landowner ruled, inter alia, that zoning is a legislative act that cannot be undone by the County’s administration.

Humorously, one councilmember’s response in the face of a 40-year plus ongoing problem was: Why didn’t anyone let the Council know so that it could implement a legislative fix? Well, maybe they can fix it now, since many more landowners in east Maui suffer the same problem.

Source: Harry Eagar, One Pukalani zoning lawsuit settled — or maybe it’s not, May 6, 2008, available at www.mauinews.com/page/content.detail/id/503438.html.

2008 Legislative Session Round Up

Hawaii's 24th Legislative session adjourned on May 1, 2008. The Governor has until July 8 to sign, veto or allow the measures to become law without her signature. The following are lists of bills and acts related to land use and administrative processes.

As of May 11, 2008, bills that became law include:

• Act 12, SB2428, exempts state highway projects from county subdivision ordinances.
• Act 14, HB3325 HD2, adds time share plans to the list of offers or dispositions of an interest in land that are exempt from the Uniform Land Sales Practices Act.
• Act 20, SB3105 SD1, allows a board to close a meeting to the public if (i) it determines that it is necessary to meet at a location that is dangerous to health or safety, or if a board determines that it is necessary to conduct an on-site inspection of a location that is related to the board's business at which public attendance is not practicable, and (ii) the director of the office of information practices concurs.
• Act 26, HB2523 , amends the land use commission's decision-making criteria to include county general plans and all related community, development, or community development plans when determining whether to grant or deny a petition for state district boundary amendment. General plans are already considered by the state land use commission. This Act simply appears to reify that practice.
• Act 31, HB2502 HD2, amends HRS Section 205-2 to allow the use of solar energy facilities on lands classified by the state as Agricultural, but only where the soil is classified by the land study bureau's detailed land classification as overall (master) productivity rating class D or E.
• Act 56, SB2900 SD1 HD1, doesn't solve the underlying problem of counties refusing to accept public highways not belonging to the state as would proposed House Bill HB 3415; rather instead, this Act gives counties a way around HRS § 264-1 (amended by Act 12, supra, provides that all public highways that don't belong to the state belong to the county), by allowing the county to maintain public highway's not belonging to the state without the presumption that the county owns a particular street, road, or highway.

Bills that passed the legislature, but are still with the governor for consideration include:

• HB2293 HD1 SD2 CD2, authorizes the Agribusiness Development Corporation to acquire agricultural lands vis-a-vis a bill enacted into law; allows acquisition agricultural lands owned by the Galbraith Estate.
• HB2450 HD1 SD2 CD1, requires the land use commission to include certain conditions in the decision granting approval of a district boundary amendment where adjacent lands are in the agricultural district, to wit (i) a prohibition on any action that would interfere with or restrain farming operations, and (ii) notification to future purchasers of the reclassified land that that farming operations and practices on adjacent land in the agricultural district are protected under Hawaii's Right to Farm Act.
• HB2730 HD1 SD1 CD1, creates a new section under Hawaii's Sunshine Law that carves out exceptions for neighborhood boards. In particular, members are allowed to meet and attend meetings outside a publicly noticed meeting so long as it is less than a quorum of its members and no commitment is made relating to a vote.
• HB2810 HD1 SD1 CD1, allows the public utilities commission to provide preferential rates for potable water used for agricultural activities.
• SB644 SD3 HD3 CD1, mandates that on or after January 1, 2010, no building permit shall be issued for a single-family dwelling that does not include a solar water heater system, and it repeals the solar energy tax credit by 2010.
• SB2170 SD1 HD1 CD1, provides a tax credit for landowners who donate land in perpetuity or completes a bargain sale in perpetuity to the State or public or private conservation agency that fulfills a conservation or preservation purpose.
• SB2293 SD1 HD1 CD1, exempts from zoning, new multi-family for-sale housing condominium developments of seventy-five units or more per acre on privately owned lands and privately financed, under HRS Chapter 201H.
• SB2646 SD2 HD2 CD1, among other things, the Act allows landowners whose agricultural lands are designated as important agricultural lands ("IAL") to construct farm dwellings and employee housing for farmers, employees, and their immediate family members on the IAL.

Does Solar Heater Mandate Pencil Out?

In this recent legislative session, the legislature passed SB644, which requires a solar water heater system for new single-family residential construction built after January 1, 2010 and phases out state solar tax credits by 2010. It has yet to be signed into law by the Governor. The cost of such a mandate will likely affect homeowners in higher housing costs.

Does the extra cost pencil out? According to a piece written for the American Chemical Society titled, Expert foresees 10 more years of R&D to make solar energy competitive, "[d]espite oil prices that hover around $100 a barrel, it may take at least 10 or more years of intensive research and development to reduce the cost of solar energy to levels competitive with petroleum[.]" Chemist Harry Gray is reported as saying, “Solar can potentially provide all the electricity and fuel we need to power the planet. The Holy Grail of solar research is to use sunlight efficiently and directly to ’split’ water into its elemental constituents – hydrogen and oxygen – and then use the hydrogen as a clean fuel.”

How much money has the state allocated to solar research and other alternative fuels unique to Hawaii? Seems like such funding might be a better approach rather than mandates which will hit home-buyer's pocket books in a waning economy.

The American Chemical Society is a congressionally chartered independent membership organization which represents professionals in all fields of chemistry and sciences that involve chemistry.

City and County Considers Higher Capacity Wind Machines in Agricultural Zone

Item 2 for action on the Honolulu City Council's April 22 Agenda is consideration of Bill 28 (2008).

Council proposes to amend Section 21-5.700, Revised Ordinances of Honolulu, to increase the capacity of wind machines allowed in the agricultural and country zoning districts, from a rated capacity of no more than 100 kilowatts to a rated capacity of 500 kilowatts. Wind machines with a rated capacity of more than 500 kilowatts will require a conditional use permit (minor).

To be consistent with Hawaii's land use policies, the underlying state designation of agriculturally zoned land must also be agriculture. Uses that are not permitted in the state designation requires a state special use permit. However, the state agricultural district allows wind energy facilities under Section 205-4.5(14) as follows:

Wind energy facilities, including the appurtenances associated with the production and transmission of wind generated energy; provided that the wind energy facilities and appurtenances are compatible with agriculture uses and cause minimal adverse impact on agricultural land[.]

Ward Neighborhood Master Plan Available to Public

The Ward Neighborhood Master Plan is posted at http://wardneighborhood.com/. The plan is for a mixed-use project that focuses on creating an urban village neighborhood, creating great public spaces, and making the connections with a balanced set of transportation modes.

Specifically, the Plan will provide for vehicular and pedestrian connection between Ward Avenue and Kamake‘e Street; commercial, residential and industrial uses within the same development; and the development of retail and residential uses that will screen and surround the lower floors of central parking structures.

The project team includes Development Design Group, urban design; Sasaki Associates, landscape architecture and infrastructure; Arup, transportation and sustainability; Belt Collins, civil engineering; and General Growth Properties, Inc, master developer.

Dan Davidson Named as Executive Officer to Land Use Commission

Today's edition of Pacific Business News and Honolulu Advertiser reported that Orlando "Dan" Davidson was named executive director of Hawaii's Land Use Commission ("LUC").

Under the LUC's rules, the executive officer is appointed by the LUC to serve as the administrative head of the commission staff. His duties and responsibilities are prescribed by the LUC, which include:

• preparing a hearings calendar and the agenda for all meetings, under the direction of the chairperson


• certifying all decisions and orders and other actions of the commission


• making available public information and copies of public records


• acting as a hearings office when appointed by the commission


• interpreting land use district boundaries at the request of the public


• conducting the prehearing conferences provided under HAR section 15-15-57


• receiving and reviewing boundary amendment petitions for completeness

Mr. Davidson will move from his present position as Executive Officer of the Hawaii Housing Finance & Development Corporation. The PBN reports that Mr. Davidson began his career as an attorney in private practice, served as a deputy corporation counsel for the City and County of Honolulu, was deputy land director for the state Department of Land and Natural Resources, and was the executive director of the Land Use Research Foundation.

Although the LUC has not officially announced the appointment, the PBN reports that Mr. Davidson will start on May 16, 2008.