Monday, December 8, 2014

Transit-Oriented Development Resources

As signs of the Honolulu Rail Transit Project appear on Oahu's landscape, TOD and Honolulu Rail are sure to be topics of discussion in 2015 and beyond.

Rail columns in West Oahu
work their way East.
Here are some resources for your reading pleasure:
For more, visit the archives at TOD and Honolulu Rail.

Tuesday, December 2, 2014

Can the State Land Use Commission Downzone Property that a Developer does not Develop in a Timely Manner?

The short answer is yes--but it depends.

In DW Aina Le‘a Development, LLC v. Bridge Aina Le‘a, LLC, the Hawaii Supreme Court considered whether the State Land Use Commission properly downzoned 1,060 acres of land slated for a residential project. 

Background.  In 1989, 1,060 acres of land on the Island of Hawaii was reclassified from agricultural to urban to allow for the development of a residential community.  The reclassification was made subject to numerous conditions, including a condition that at least 60 percent of the residential units be affordable.  The Commission granted requests to amend the affordable housing condition for the Aina Le'a project.  (Note: During this period of the Commission's history, it was not uncommon for the Commission to require a 60 percent affordable set-aside for residential developments.  Anecdotally, the Commission reduced the affordable housing requirements for these projects to a more economically feasible set-aside, upon request.)

By 2005, the condition required the landowner, Bridge Aina Le‘a, LLC (Bridge), to set aside 20 percent of the units as affordable.  Because of Bridge's perceived failure to comply with certain conditions, in December 2008, the Commission issued an order to show cause (OSC) why the land should not revert to its former agricultural land use classification.  Soon thereafter, Bridge informed the Commission that it intended to assign its interest in the land to DW Aina Le‘a Development, LLC (DW) through an installment sale. DW subsequently invested more than $20 million in developing the site.  Nevertheless, after proceedings over the course of several years, the Commission issued an order reverting the land to the agricultural use district.

Conceptual Plan
Boundary Amendment Process and Enforcement.  Under HRS § 205-2, there are four major land use districts in which all lands in the state are placed: urban, rural, agricultural, and conservation.  The counties may further zone lands in the state urban district.  Counties have limited authority to zone in the other districts, except for conservation, where the state regulates exclusively.

Since 95 percent of lands in the state are in the conservation or agricultural district, landowners frequently desire a land use district boundary amendment to allow residential, commercial, and other uses.  HRS § 205-4 generally sets forth the procedures the Commission must follow in amending a district boundary.   The Commission is required to find by a clear preponderance of the evidence that the reclassification is reasonable, not violative of HRS § 205-2 (district classification standards), and consistent with the policies of HRS § 205-16 (compliance with the Hawaii state plan) and HRS § 205-17 (decision-making criteria).

HRS § 205-4(g) gives the Commission broad authority to impose conditions on boundary amendment petitions.  While the Commission can determine whether a condition it imposes is being violated, in general, enforcement of these conditions are left to the counties under HRS § 205-12.  However, a 1990 legislative amendment to HRS § 205-4(g) empowered the Commission "to void a boundary amendment, after giving the landowner the opportunity for a hearing, if the landowner failed to substantially commence use of the land in accordance with its representations."  In other words, under certain circumstances, the Commission may revert or downzone a property to its former state land use boundary classification (e.g., as in this case, from urban back to agricultural).

Holding.  The Court set-forth the following principles for the Commission when it considers reverting a boundary designation to its former classification:

  • First, the Commission must issue an Order to Show Cause, which is set-forth in the Commission's rules at HAR § 15-15-93.
  • Second, the Commission must determine "whether the petitioner has substantially commenced use of the land in accordance with its representations." 
  • Finally, if the answer to the above question is yes, the Commission is required to follow the procedures set forth in HRS § 205-4.  If no, the Commission may revert the land without following the procedures set forth in HRS § 205-4.
Applying the aforementioned principles to the facts of this case, the Court held that the circuit court correctly concluded that the Commission erred in reverting the property to agricultural use without complying with the requirements of HRS § 205-4, because by the time the Commission reverted the property, DW and Bridge had substantially commenced use of the land in accordance with their representations.

The Court reasoned that although there is no definition for "substantially commenced" in the statutes, the intent of the legislature was to "deter speculators who obtained favorable land-use rulings and then sat on the land for speculative purposes."  The Court relied on the circuit court's analysis of this finding, noting that the petitioner had, among other things, continued to actively proceed with preparation of plans and studies, including building plans and studies for the environmental impact statement.  In addition, sixteen townhouses were completed on the property.

Other Holdings.  Although the Court did agree with the circuit court on the substantive portion of the case, it disagreed on three other items worth noting.

First, specific documents that were not before the Commission should have been struck from the record on appeal.  HRS § 91-14 specifically confines an agency appeal to the administrative record.

Second, the Commission did not violate DW and Bridge's constitutional rights to due process and equal protection.  Both Bridge and DW had notice and a meaningful opportunity to be heard before the Commission reverted the property. And, given the circumstances, the Commission's conduct was not “arbitrary and unreasonable.”

Third, Bridge’s and DW’s equal protection rights were not violated because the record does not establish that the LUC lacked a rational basis for its decisions.

Tuesday, October 14, 2014

Three Charts Tell the Story of Hawaii's Energy Scorecard

Residential cost of energy in Hawaii is nearly 200 percent over the national average--over 200 percent for natural gas.

An overwhelming majority of energy in Hawaii is produced from imported fossil fuels (e.g., petroleum and coal).

Hawaii's transportation sector consumes more energy than three sectors combined.

Hawaii needs to focus all its effort on (1) reducing the cost of energy, (2) increasing locally produced electricity from locally renewable energy sources (e.g., wind, water, sun, and geothermal), (3) reducing fuel consumption by increasing multi-modal options for transportation (e.g., public transit, biking, walking), changing government vehicle fleets to renewable fuels, and planning communities that are designed for public transit, walking, and biking to and from work, play, markets, and home.

Sunday, October 12, 2014

Blackburn’s Sphinx Moth

According to the U.S. Fish and Wildlife Service, the Blackburn’s sphinx moth (Manduca blackburni) is Hawaii’s largest native insect, with a wing span of up to 5 inches (12 centimeters).  

The large caterpillars occur in two colors, bright green or gray with scattered white speckles throughout the back and a horizontal white stripe on the side margin of each segment.

The Blackburn's sphinx moth is listed on the federal endangered species list and is one of the few animal species with designated critical habitat in Hawaii--approximately 55,451 acres on the islands of Hawaii, Kahoolawe, Maui, and Molokai.

The natural host plants are native trees within the genus Nothocestrum (aiea); however, as native plants become threatened, the moth has found an appetite for certain invasive species including the tobacco plant commonly found as a weed on undeveloped parcels of land.

If you see one of these plants, you'll need to be sure
there aren't any feasting Blackburn’s sphinx moths. 
If plants are discovered, consultation with a biologist and the US Fish and Wildlife Service may be required to avoid harming or taking the moth and comply with the Endangered Species Act.

Tuesday, July 1, 2014

Appellate Court Says Texas Not Liable under ESA for Issuing Water Withdrawal Permits; Whooping Crane Deaths Too Remote

The Aransas Project (“TAP”) sued the directors of the Texas Commission on Environmental Quality (“TCEQ”) under the Endangered Species Act ("ESA") alleging among other things that water permits issued by TCEQ caused the deaths of endangered whooping cranes.  On June 30, 2014, the U.S. 5th Circuit Court of Appeals disagreed with TAP and held in favor of TCEQ in Aransas Project v. Shaw.

Surface-water capture and use is regulated by TCEQ. TAP asserted that TCEQ's water permitting and regulatory practices had led to private parties’ withdrawing water from the San Antonio and Guadalupe rivers, in turn leading to a significant reduction in freshwater inflow into the San Antonio Bay ecosystem. That reduction in freshwater inflow, coupled with a drought, led to increased salinity in the bay, which decreased the availability of drinkable water and caused a reduction in the abundance of blue crabs and wolfberries, two of the cranes’ staple foods.  According to TAP, that caused the cranes to become emaciated and to engage in stress behavior, such as denying food to juveniles and flying farther afield in search of food, leading to further emaciation and increased predation. Ultimately, this chain of events led to the deaths of twenty-three cranes during the winter of 2008–2009.

Whooping Crane
Whooping Crane (Grus americana)
Soure: WikiPedia
The whooping crane is listed as an endangered species under the ESA.  The ESA applies to all “persons,” including “any officer, employee, [or] agent, . . . of any State.”  16 U.S.C. § 1532(13).  The Act forbids “takes” of endangered species such as the whooping crane.  Id. § 1538(a)(1)(B).  “The term ‘take’ means to harass, harm, . . . wound, [or] kill” protected species.  Id. § 1532(19). “Harm” includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”  50 C.F.R. § 17.3(c).  “Harass . . . means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.”  Id.  “Congress intended ‘take’ to apply broadly to cover indirect as well as purposeful actions.” Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704 (1995).

The 5th Circuit addressed the following issue: "[W]hether the actions of TCEQ in administering licenses to take water from the Guadalupe and San Antonio rivers for human, manufacturing and agricultural use foreseeably and proximately caused the deaths of whooping cranes in the winter of 2008–2009."

The Court reasoned that "[p]roximate cause and foreseeability are required to affix liability for ESA violations."  In other words, "strict liability, unlimited by causal connection" is not the standard for determining ESA liability.  The Court cited Sweet Home for the proposition that the "ESA prohibits 'takes' so long as they are "'foreseeable rather than merely accidental.'"  515 U.S. at 700.

Applying the proximate cause standard, the Court held in favor of TCEQ, because "[f]inding proximate cause and imposing liability on the State defendants in the face of multiple, natural, independent, unpredictable and interrelated forces affecting the cranes’ estuary environment goes too far."

Wednesday, June 4, 2014

Appeals Court Affirms Sufficiency of Environmental Impact Statement Related to Landfill Expansion

Waimanalo Gulch Sanitary Landfill
In short, the City and County of Honolulu decided to expand the size and operation of the Waimanalo Gulch Sanitary Landfill.  Not all in the community supported this effort.  Administrative and judicial challenges to stop the project occurred on several fronts.  This blog entry deals with challenges to the final environmental impact statement (EIS) that was prepared for the project.

In Hanabusa v. Department of Environmental Services of the City and County of Honolulu, ICA No. 30517, May 30, 2014, Plaintiff challenged the project's Final EIS on the following grounds:

  1. The Final EIS concealed and failed to adequately address the true nature of the project (primarily as it relates to size); and
  2. The Circuit Court erred in failing to address each of the allegations in Plaintiff's complaint regarding the insufficiency of the Final EIS.
The Intermediate Court of Appeals (ICA) disagreed with Plaintiff and affirmed the Circuit Court's judgment in favor of the City.

Notable takeaways from the decision are:
  • The argument by Plaintiff that the City promised to close the site by 2008, but instead proposed expanding and continuing use "until capacity . . . is reached" did not have any weight on the ICA's review of the adequacy of the EIS.  
  • In practice, there has always been some grey area about the extent to which the Hawaii Environmental Policy Act (HEPA) can tier off of previous environmental documents (like EIS preparers often do for similar NEPA documents).  In this case, the ICA looked favorably on the fact that the EIS referred to previous EIS documents and studies related to the site.
  • Plaintiff was barred from raising an EIS challenge to the scope of the Final EIS, because Plaintiff did not raise that issue in Plaintiff's EIS comments.
  • When a plaintiff alleges that an EIS does not take a "hard look" at environmental factors, the burden is on the plaintiff to (1) provide significant details or arguments with respect to those claims, or (2) cite persuasive legal authority.
Additional background on this matter can be found in the article entitled, Hawaii Supreme Court Remands Landfill Decision to State Land Use Commission based on Unsubstantiated Closure Date Requirement.

Thursday, October 17, 2013

Top 10 Tips for Getting Through the Land Use Regulatory Process

  • Local knowledge - Nothing grabs a community's attention like a construction project in or around their neighborhood.  Be it public utility, roads, schools, houses, or commercial project, people want to know what you're doing, why you're doing it, and how it will affect them.  Reaching out to the community early, often, and in a way that values their input is not only being a good neighbor, but also a regulatory prerequisite to regulatory approvals. Outreach needs to be strategic.  It's not enough to have large public meetings.  Gathering public input also means meeting with the right people, such as community leaders (not necessarily elected) who represent broader communities.  Having a good public outreach plan that is prepared in consultation with folks who know the community, coordinated with project planning, can help focus efforts and avoid regulatory duplication.
  • Identify key regulatory personnel - So you stopped by X agency and you talked to someone, and you walked away feeling pretty good because that person said that your project should get through the regulatory process without any problems.  Don't start counting your chickens until you ask yourself these questions: (1) Are you pursuing the correct regulatory approval, (2) Are you at the correct agency; and (3) Does the person you spoke to have authority to speak for the agency?  Your answers should be: yes, yes, and yes.
  • Complete the application - Applicants file incomplete applications all the time.  In the best of circumstances, the applicant failed to get professional help and doesn't understand the process.  In the worst case, the applicant expects the regulator to do the applicant's work by reviewing the incomplete application and telling the applicant how to complete it.  In the former case, agencies generally have guidance available than can help the public navigate the permitting process.  However, in the latter case, it's just unprofessional.  It's a sure way to upset a regulator--and you don't want that.  Most regulators want to help you get through their process quickly and efficiently.  They don't want a backlog.  If you have a critique about a certain requirement, a regulator can't change that.  You'll need to take it up with the legislative body that makes law.  Also, there is a difference between turning in an incomplete application and pre-consultation.  Pre-consultation, before submitting an application and after the applicant has done some research, is encouraged.
  • Don’t skimp on planning and outreach - Old Ben Franklin's adage should be taken to heart: An ounce of prevention is worth a pound of cure.  Early planning, which includes a permitting, entitlement, environmental review, and outreach strategy at the front end of a project significantly reduces financial and legal risk during final design and construction.  Someone once told me, "It doesn't matter what we do, we'll be sued anyway."  Well yes, that is true, but thoughtful planning can reduce the amount of time you spend in court and reduce the likelihood of a court telling you that the project needs to start over. 
  • Know the game: discretionary or ministerial - Knowing this will change how you develop your project development strategy.  Ministerial or over-the-counter permits are those that have very specific code requirements that must be fulfilled before it is approved, like a building permit.  A discretionary approval allows the regulator more discretion for tailoring an approval with various requirements of approval based on broader criteria, like a change of zoning request. This usually involves a board, commission, or elected body
  • Define your project—stick to it - Granted, as you work through planning, permitting, and environmental review, elements of the project may change; however, you should go into the process with a clear understanding of the proposal's purpose and need.  This should be clear and concise, because changing the purpose and need midstream while working through the panoply of land use approvals can have unintended consequences. If the project is changed too much, you may need to start over.
  • Follow approval criteria - You do not need to win a regulator over on how great your project is. All the regulator needs to know is how your proposal satisfies the regulatory criteria and process required by the particular permit or entitlement you are applying for. Write clearly and concisely.  Show exactly how the facts of your proposal match up with regulatory requirements. Enable the regulator to expeditiously process your application. 
  • Look for opportunities for concurrency - The permitting, planning, and environmental review processes allow many opportunities for cross-referencing reports, facts, figures, and public hearings. For example, environmental review documents can be used to concurrently address permitting requirements; and county, state, and/or federal requirements often share similar requirements and criteria.
  • Have the right team of experts - Depending on the complexity of your proposal and whether it's a ministerial or discretionary approval, you will need several experts, for example, architects, engineers, planners, lawyers, and financial experts.  Although many of these fields are cross-trained to some extent, it's rarely a good idea to substitute one for the other.  You can't build a house with only a hammer--you need the whole toolbox.
  • Be sure your team is communicating - It is not uncommon for well-intended team members to not adequately communicate with the rest of the development team.  The attorney can't reduce legal risk if she doesn't know what the planners' are recommending for their environmental impact statement strategy.  The planners can't properly address potential alternatives if the engineers have one approach in mind for design that no one knows about.  Someone needs to be able to organize the team so the proper disciplines are working on the right issues, and communication across disciplines is happening to ensure that all decisions are fully informed and aimed at achieving the project purpose and need.
I originally presented this list at a workshop on green industry permitting.  Materials for the workshop will be posted at