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

Thursday, October 10, 2013

There is No "Wizard of Oz" Pulling Levers Behind the Curtain

My interest was piqued by a recent Hawaii Public Radio piece entitled, Planning Neighborhoods: What? When? Where?  It is part of the larger, ongoing discourse in Hawaii that is now reaching a fevered pitch as Hawaii's economy improves and land use projects move from conception to construction.

I was interviewed by Noe Tanigawa and briefly quoted in the piece.  In our longer interview, I got the sense that Noe was trying to put her finger on who makes the ultimate decision on how we grow as a state.  My response to her was that there is no "Wizard of Oz" pulling levers behind the curtain.  How the state grows is everybody's responsibility.  People look to blame government or project proponents, but those efforts are project specific and ephemeral.  It will not significantly impact the future of Hawaii.

The Hawaii land use and planning system has some very basic goals that stand the test of time:

  • To “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.
  • "To improve the planning process in this State, to increase the effectiveness of government and private actions, to improve coordination among different agencies and levels of government, to provide for wise use of Hawaii’s resources and to guide the future development of the State.”  See HRS §226-1.
  • To “provide for the effective management, beneficial use, protection, and development of the coastal zone.”  See L. 1977, c 188, § 1.

How we deliver, as a society, on these promises is everyone's responsibility.  There is no one person or institution to blame, because we are all to blame.  Instead of pointing fingers, let's figure out what "we", our generation, want our future to be and set up mechanisms and strategies to obtain our preferred future.

But let us remember as we move forward that it's not just about land use, it's about basic concepts of a healthy society--unalienable rights, such as life, liberty and the pursuit of happiness.  This challenge requires complex solutions to multidimensional and multidisciplinary problems that confront our modern society.

Like with so many challenges confronting our society, we know the problem.  In many cases, we have known for decades.  The question is, who is up to this task for making real change divorced from politics and self-interest for the benefit of current and future generations as a whole?  We need a critical mass of those kinds of leaders posthaste.

Friday, September 20, 2013

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

A survey of significant Hawaii land use and planning legislation, judicial opinions, and land use commission activities in 2013.

These materials supported a lecture on the impacts these developments in the law will have on project proponents, regulators, consultants, and the interested public.

Thursday, August 29, 2013

Ain't No Sunshine When You're Not Giving the Public a Meaningful Opportunity to Participate -- Technically

Petitioners, who are residents of Maui, filed Kanahele v. Maui County Council based on the Maui County Council’s passage of two bills related to the development of a residential community on 670 acres of land located in Wailea, Maui (Wailea 670 project).

Source: Honua‘ula Current Master Plan,

The proposed Wailea 670 project includes a golf course, single- and multi­family residences, recreation and open spaces, and village mixed-use sub-districts. Honua'ula is the owner and developer of the land in question. The Council, on the recommendation of its Land Use Committee, passed two land use related bills in connection with the Wailea 670 project.

Petitioners filed suit in the circuit court challenging the bills’ passage, arguing that the Council and Committee failed to satisfy the requirements of the State open meetings law, HRS chapter 92, Hawaii’s Sunshine Law.  The circuit court, and subsequently the intermediate court of appeals (ICA), ultimately ruled against Petitioners. Petitioners then appealed to the Hawaii Supreme Court, whose decision is discussed below.

Petitioners’ first challenge arises from the Committee’s meeting that had been initially noticed for October 18, 2007.  It was reconvened and then continued successively in the same manner on October 23, 25, 29, November 1, 5, 7, 8, 13, 16, 19, and 20. Thus, the October 18 meeting was continued and reconvened twelve times until the final meeting on November 20.

Petitioners’ second challenge arises from the actions of several council members who offered several amendments to the proposed bills.  There were a total of 14 memoranda sent between councilmembers in February 2008. Petitioners claim that no public testimony or notice was given regarding these Council amendments.

First, the Hawaii Supreme Court addressed “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.” The Court held that the Committee and Council did not violate the Sunshine Law by continuing and reconvening the October 18, 2007 meeting and February 8, 2008 meeting beyond a single continuance. The Sunshine Law does not require the Committee and Council “to post a new agenda and to accept oral testimony at each meeting beyond the first continuance.”

Second, the Court considered “whether the Sunshine Law permits board members to circulate written memoranda among all other members, in which board members [i.e., councilmembers] present proposed actions, include justifications for the proposals, and seek ‘favorable consideration’ of the proposals.” The Court held that “the challenged memoranda do not fall within any of the ‘permitted interactions’ listed in HRS § 92-­2.5,” because “the memoranda were distributed among all of the members of the [Council] rather than among only two members of the board.” In addition, the memoranda violated the Sunshine Law, because it asked members for vote commitments. The memoranda were not simply “informational.”

In summary, the Court held as follows:

  1. The Council and Committee did not violate the Sunshine Law by reconvening the October 18, 2007 and February 8, 2008 meetings beyond a single continuance without posting a new agenda and without accepting public oral testimony at every reconvened meeting.
  2. The Council violated the Sunshine Law by distributing written memoranda among its members outside of a duly noticed meeting, through which the members impermissibly sought a commitment to vote. However, it does not violate final passage of the bills. Petitioners’ claim relates to violations related to the first reading of the bills, which was not a final action for purposes of Sunshine Law appeals.

Thursday, August 8, 2013

Haw. State Bar Association Presents Federal and State Land Use and Planning Law Update

William S. Richardson School of Law, Professor David Callies, and Director of State Office of Planning, Jesse Souki, will cover recent federal and state case law and legislation affecting land use and planning in Hawaii. Topics will include the recent takings opinion from the US Supreme Court (Koontz v. St. Johns River Water Management District) and state appellate court decisions related to takings, public trust doctrine, and historic preservation.

DateThursday, August 29, 2013
Location: HSBA Conference Room
Credits: 1.5 MCPE

Additional Information:

Friday, June 28, 2013

No Permit for You! -- How Denying a Permit Could be a Taking

On June 25, 2013, the Supreme Court of the United States (SCOTUS) overturned a Florida Supreme Court decision in, Koontz v. St. Johns River Water Management District.  The majority opinion (Alito, Roberts, Scalia, Kennedy, and Thomas) held that the St. Johns River Water Management District's (District) demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan (1) even when the government denies the permit and (2) even when its demand is for money.

The minority opinion (Kagan, Ginsburg, Breyer, and Sotomayor) agreed with the majority opinion as to the first point.  However, the minority disagreed as to the second point: monetary exactions are a taking.  In their opinion, "the government may impose ordinary financial obligations without triggering the Takings Clause’s protections."  The minority goes on to sketch an outline for evaluating the merits of the case based on the requirements of Nollan and Dolan; however, the majority left that to the Florida courts on remand.

As with most SCOTUS decisions, time will tell how this decision affects real life situations.  But at least one thing seems clear, landowners may seek judicial remedy for takings sooner rather than waiting for the issuance of a permit.  Despite the worries of some government regulators, this decision should not change how it regulates land use.  In any land use entitlement proceeding, if government does its homework and provides a reasoned Nollan/Dolan analysis, there should not be a need to resort to judicial intervention.

Although SCOTUS did not get to the merits of the case (i.e., whether the District did indeed effect a taking), the facts do not appear to be favorable to the District.  Koontz decided to develop the 3.7-acre northern section of his property.  His proposal included raising the elevation of the northernmost section of his land to make it suitable for a building, grading the land from the southern edge of the building site, and installing a dry-bed pond for retaining and gradually releasing stormwater runoff from the building and its parking lot. To mitigate the environmental effects of his proposal, Koontz offered to foreclose any possible future development of the approximately 11-acre southern section of his land by deeding to the government a conservation easement on that portion of his property.

The District proposed two alternate conditions:

  1. That Koontz reduces the size of his development to 1 acre and deed a conservation easement on the remaining 13.9 acres to the government to mitigate environmental effects of his proposal.  In addition, Koontz would be required to install a costly subsurface stormwater management system and install retaining walls; or
  2. Build as originally planned on 3.7 acres, deed the remainder of his property as conservation easement to the government, and pay to replace culverts on one parcel or fill in ditches on another.  These improvements were offsite and not owned by Koontz.
It is difficult to imagine how the District's proposed exactions did not go beyond what is roughly proportional to the impacts caused by Koontz's proposal.

Wednesday, June 12, 2013

ICA Holds that Denial of SMA Permit Assessment is Ripe for Takings Claim without First Pursuing Plan Amendment

In Leone v. County of Maui, 128 Haw. 183 (2012), cert. denied, Appellants purchased property at Palauea Beach in Makena, Maui.

Palauea Beach Facing South
The 1998 Kihei-Makena Community Plan (Community Plan) assigned the beach lots a "park" land use designation, which does not permit the construction of single-family residences.  The Palauea Beach lots are also located in a "special management area" (SMA) under the Hawaii Coastal Zone Management Act (CZMA).  See HRS § 205A-22. Consequently, prior to building Appellants' desired single-family residences, they first needed to seek a Community Plan amendment from "park" to "residential."

A Community Plan amendment is a legislative process that involves review of the proposal by the County Planning Commission and adoption by the County Council. However, the County Planning Commission refused to accept the requisite environmental assessment, which the court found was part of a “deliberate strategy to preserve the status quo.”

Appellants nevertheless filed SMA assessment applications with the County Planning Department. Predictably, the Director rejected Appellants' applications, because the proposed use was inconsistent with the properties' "park" designation in the Community Plan. Appellants then filed inverse condemnation claims under article I, § 20 of the Hawaii Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, alleging that Maui County had engaged in regulatory takings by depriving their properties of any economically viable use.

The Circuit Court dismissed all claims in both cases for lack of subject matter jurisdiction on ripeness grounds. It concluded that the claims were unripe for adjudication, because Appellants failed to exhaust administrative remedies, namely: (1) appealing the Director's decision to the Planning Commission; (2) waiving assessment procedure and submitting an SMA permit application; and (3) seeking an amendment to the Community Plan to change the properties' designation from "park" to "residential."

Appellants timely filed notices of appeal to Hawaii’s Intermediate Court of Appeals (ICA). Upon review, the ICA opined the following:

  • Appellants are not required to appeal the Director's decision that their assessment application could not be processed because "[t]he proposed Single-Family dwelling is inconsistent with the Community Plan." The Director's decision satisfied the finality requirement for ripeness by setting forth a definitive position regarding how Maui County will apply the regulations at issue to the particular land in question.
  • Appellants are not required to seek a change in the applicable law, i.e., the Community Plan, in order to satisfy the ripeness requirement for their takings claims. Citing Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985), the ICA reasoned that the taking was ripe in this case, because the Director reached a final decision regarding the application of the SMA regulation to the property at issue. Unlike in Williamson, the Appellants did not have a variance process to pursue.  The Court did not agree with the County's argument that an amendment to a Community Plan is like the variance process in Williamson.  In Williamson, the court held that the takings claims were unripe, because the respondent failed to seek available variances, and thus the decision was not final

In conclusion, the ICA held that the Circuit Court erred in its determination that it lacked subject matter jurisdiction, because Appellants' claims were not ripe for adjudication. The ICA vacated the Circuit Court's order and remanded the case for for further proceedings.