Lanai City Listed as Endangered Historic Place

The National Trust for Historic Preservation recently placed Lanai City, Hawaii, on its annual roster of America’s most endangered historic places.

The Trust’s reasons for listing the property (mostly owned by Castle & Cooke) are described at its Lanai City website. The Trust is a “private, nonprofit membership organization dedicated to saving historic places and revitalizing America's communities.” Its annual list does not have the force and effect of law, and it is not part of a federal or state regulatory process. However, its list may provide encouragement for starting the process.

Preserving historic property may be good for the community, but it is not necessarily good for the private landowner. Under HRS § 6E-10, a private landowner cannot begin construction, alteration, disposition or improvement of any nature on his property if it is “historic property on the Hawaii register of historic places.” Under HRS § 6E-2, “historic property” means any building, structure, object, district, area, or site, including heiau and underwater site, which is over 50 years old. However, being a historic property alone does not trigger preservation regulations; it must also be placed on the Hawaii register of historic places.

The procedure for placing a historic property on the Hawaii register is found under HAR chapter 13-198, which is administered by State Historic Preservation Division, Department of Land and Natural Resources, State of Hawaii. Any person or agency may nominate a building, structure, object, district, or site for entry into the Hawaii register by submitting certain information to the Division. The process includes notice to owners and a public hearing before the Hawaii historic places review board. After the hearing, the Board makes its determination based on criteria enumerated under HAR § 13-198-8.

Once on the Hawaii register, private property is shared, in a sense, with the public. HAR § 13-198-9 states that “[t]he entering and ordering of a property into the Hawaii register signifies a recognition that the owner has a historic property, and that the preservation and maintenance of the property is contributing to the State's and nation's historic patrimony, and is thus serving the public.” The private landowner must follow the rules under HRS § 6E-10 (discussed above) and must comply with the Hawaii Environmental Policy Act for any proposed use related to the listed property under HRS § 343-5.

Private property may concurrently be nominated for listing on the National Register of Historic Places under National Historic Preservation Act of 1966. The U.S. Department of the Interior administers the Act. If a private landowner objects to the nomination, the State Historic Preservation Officer may nominate the property to the National register and specific federal criteria will be reviewed before listing the property. See HAR § 13-198-11, 36 CFR pts 60 and 63. Federally listed properties may take advantage of certain federal tax benefits and grants. A federal listing is less burdensome for the landowner than a state listing. The federal regulations specifically state that the “[l]isting of private property on the National Register does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property.” 36 CFR § 60.2.

For more on the annual roster of America’s most endangered historic places, see “Preservation Group Lists Most Endangered Places,” NYT, April 28, 2009.

Is Hawaii Losing Open Space and Agricutural Lands at a Critical Rate?

Section 6 of the 2007 State of Hawaii Data Book has records for the amount of lands classified in the four state land use classifications from 1969 to 2006.

In 1969, there was a total of 4,111,500 acres of land in the state of Hawaii, which was divided among the four state land use districts as follows: Urban, 140,163; Conservation, 2,009,087; Agricultural, 1,955,875; and Rural, 6,375. In 2006, there was a total of 4,112,388 acres of land in the state of Hawaii, which was divided among the four state land use districts as follows: Urban, 197,663; Conservation, 1,973,631; Agricultural, 1,930,224; and Rural, 10,870.

From 1969 to 2006, the change of land in each land use classification was as follows: Urban, increase of 41%; Conservation, decrease of 2%; Agricultural, decrease of 1%; and Rural, increase of 71%. However, the percentage of land classified in each category remained relatively stable as a percentage of the total land mass of the state between 1969 and 2006, as illustrated in the following pie charts (note that Rural shows 0% because it is less than 1%):




The numbers clearly illustrate that the state's land use regulatory system under HRS chapter 205 has kept over 95% of Hawaii's land mass in the Agricultural and Conservation districts since 1969, which has the effect of constraining urban development, preserving open space and recreation areas, and retaining large swatches of agricultural land. That's what the numbers would tell us anyway.

Three Finalists Selected as Trustees for State's Largest Private Landowner

According to a notice in the April 26, 2009 edition of the Honolulu Advertiser, the Trustee Screening Committee appointed by the Probate Court in January 2009 has nominated three candidates from which the Court will select one Trustee for Kamehameha Schools.

The nominees were whittled down from 68 candidates, they are: Anthony Ching, Executive Officer of the Hawaii Community Development Authority, State of Hawaii; Micah Kane, Chairman of the Department of Hawaiian Home Lands ("DHHL"), State of Hawaii; and Raynard Soon, former Kamehameha Schools executive and ex-DHHL Chairman.

As the largest private landowner in the state, the Trust has a big impact on land use development in Hawaii. According to the The State of Hawaii Data Book 2007, the Trust owned 365,760 acres of land in Hawaii in 2003, the second largest private landowner was Parker Ranch who owned just 134,446 acres by comparison.

According to the notice, the public is invited to submit written comments before 4:00 p.m. on May 26, 2009. Contact Inkinen & Associates for more information.

Kona Company Seeks to Turn Macadamia Nut Shells into Carbon

Kona Carbon LLC (aka Big Island Carbon LLC) plans to lease lands from the Department of Hawaiian Home Lands, State of Hawaii to construct coal production facilities in the Department's Kaei Hana II Industrial Subdivision in Kawaihae on the Big Island.

The proposed processing facility would require approximately one acre, with the shell stockpile requiring up to an additional five acres. Kona Carbon will process approximately 10,000 tons of macadamia nut shells annually and employ 20 to 30 workers. Its source of shells will come from the Hamakua Macadamia Nut Processing Plant. The shells will be put through a series of processing steps to convert them into activated carbon for sale and shipment to chemical and pharmaceutical processors. The proposed facility would also generate a biofuel product that would be used to fuel the processing equipment.

Kona Carbon's Draft Environmental Assessment is available for public review and comment at the Office of Environmental Quality Control.

Maui Wind Energy Producer Proposes Expansion

Kaheawa Wind Power II, LLC, a subsidiary of First Wind is proposing an expansion of its wind energy generation facility on the island of Maui.

The project includes the construction and operation of a new 21 MW wind power facility (14 wind turbine generators with associated electrical transmission and interconnection facilities) within the State Conservation District. It will be located adjacent to the existing Kaheawa Wind Power facility above Maalaea, Maui.

Because the proposed project may potentially result in the incidental take of four threatened and endangered species [Hawaiian petrel (Pterodroma sandwichensis), Newell’s shearwater (Puffinus auricularis newelli), Hawaiian goose (Branta sandvicensis), and Hawaiian hoary bat (Lasiurus cinereus semotus)], Kaheawa Wind must prepare a a Habitat Conservation Plan pursuant to the Endangered Species Act ("ESA") and HRS Chapter 195D. The objective being to avoid, minimize, mitigate and monitor impacts to protected species.

ESA section 9 prohibits the unauthorized "take" of any endangered or threatened species of fish or wildlife listed under the ESA. Under the ESA, the term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect species listed as endangered or threatened, or to attempt to engage in any such conduct. An unauthorized take can lead to fines and imprisonment. However, the US Fish and Wildlife Service ("FWS") may permit prohibited takings if it is incidental to the carrying out of an otherwise lawful activity. Before the FWS grants an incidental take permit, the applicant must first develop, fund, and implement a FWS-approved habitat conservation plan to minimize and mitigate the effects of the incidental take. The requisite criteria for an incidental take permit can be found under ESA section 10(a)(1)(B) and 50 CFR sections 17.22(b)(2) and 17.32(b)(2).

State law also circumscribes unauthorized takes of endangered or threatened species under HRS section 195D-4. At the state level, the Board of Land and Natural Resources will issue an incidental take license after approval of the HCP by the State's Endangered Species Recovery Committee. The Committee is comprised of biological experts and representatives of affected state and federal agencies. The state's requirements are higher than under the ESA, but both processes are coordinated.

The Draft Kaheawa Wind Power II Wind Energy Generation Facility Habitat Conservation Plan, Island of Maui (April 2009) is available for public review and comment. A public hearing will be held in May according to the April 23, 2009 edition of the Environmental Notice.

Historic Decision at the Land Use Commission; First IAL Designation

On March 9, 2009, the Land Use Commission, State of Hawaii granted Alexander & Baldwin its request to designate 3,773.1 acres of land on the island of Kauai to important agricultural lands ("IAL"). See Petition For Declaratory Order To Designate Important Agricultural Lands.

The IAL designation joins four existing designations granted by the Commission (urban, rural, agricultural, and conservation). In Hawaii, counties may zone land within its boundaries subject these state land use designations. The urban designation is regulated entirely by the counties through zoning. Counties have limited zoning authority in the rural and agricultural districts. Conservation districts are regulated by the state through the Department of Land and Natural Resources. See Hawaii Land Use Regulatory System.

The IAL designation is the state's attempt to preserve agricultural land above and beyond land already in the agricultural district. The agricultural designation restricts uses and structures allowed within the agricultural district to those enumerated under HRS Sections 205-2, 205-4.5, and 205-4.6. Predictably, "[a]ctivities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry" are allowed. HRS Section 205-2(d)(1). Other seemingly nonagricultural uses are also allowed in the agricultural district, for example, wind farms and open area recreational facilities. So called farm dwellings and employee housing are also allowed within the agricultural district and have been a lighting rod for controversy, since more often than not, palatial residential dwellings tend to grow on agricultural estates like weeds snuffing out the actual agriculture. See “Unbridled Growth”.

The IAL designation is more restrictive than the agricultural designation. IAL is governed by HRS Section 205-41, et seq. The stated purpose of the statute is that "the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State." Id. The statute has its antecedent in Article XI, Section 3 of the Hawaii Constitution, which provides as follows:

Section 3. The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Before the Commission can designate land as IAL, it must consider 8 criteria, which is separate and apart from the criteria considered for the agricultural district. These criteria are enumerated under HRS Section 205-44 as follows:

(1) Land currently used for agricultural production;
(2) Land with soil qualities and growing conditions that support agricultural production of food, fiber, or fuel- and energy-producing crops;
(3) Land identified under agricultural productivity rating systems, such as the agricultural lands of importance to the State of Hawaii (ALISH) system adopted by the board of agriculture on January 28, 1977;
(4) Land types associated with traditional native Hawaiian agricultural uses, such as taro cultivation, or unique agricultural crops and uses, such as coffee, vineyards, aquaculture, and energy production;
(5) Land with sufficient quantities of water to support viable agricultural production;
(6) Land whose designation as important agricultural lands is consistent with general, development, and community plans of the county;
(7) Land that contributes to maintaining a critical land mass important to agricultural operating productivity; and
(8) Land with or near support infrastructure conducive to agricultural productivity, such as transportation to markets, water, or power.

Another difference between the agricultural and IAL district is that for IAL, the legislature sets out specific criteria for when a farm dwelling or employee housing is allowed. Contradistinctively, the counties determine when a permissible dwelling or housing is allowed in the agricultural district. IAL dwellings or housing must meet several specific statutory requirements under HRS Section 205-45.5, including the following: (1) the dwelling or housing must be used exclusively by farmers and their immediate family members who actively and currently farm on the parcel; (2) it cannot take up more than 5 percent of the total acreage of the parcel; (3) an owner of IAL cannot plan or develop a residential subdivision for the parcel; and (4) the construction of dwellings or housing must be supported by agricultural plans that are approved by the Department of Agriculture, State of Hawaii. State law also specifically circumscribes the sale of IAL parcels "solely for residential occupancy." HRS Section 205-51.

Incentives for seeking IAL designation for private landowners include a fast-tracked approval process for the designation of IAL and a landowner may also fast-track re-designation into urban if 85 percent of the petition is IAL. The Alexander & Baldwin petition did not make use of the 85/15 process, instead opting for tax credits. The IAL statute also encourages the state and counties to offer other IAL incentives listed under HRS Section 205-46.

In addition to the voluntary process described above, there is also a mandatory process. For this reason, landowners with large parcels of agricultural lands should be wary of down-zoning. HRS Section 205-47 requires that each county must develop maps of potential lands to be considered for designation as IAL. These maps must be adopted by county council resolution and submitted to the Commission no later than 60 months from the date of county receipt of state funds appropriated for the identification process (so far, only the County of Kauai has received such funds). Upon receipt of the IAL map by the Commission, two state agencies, the Department of Agriculture and the Office of Planning, will review the IAL map. HRS Section 205-48. Finally, the Commission, sua sponte, will designate the IAL based on the IAL map. HRS Section 205-49.

Life After Molokai Ranch

In March of 2008, the Molokai Ranch announced that it would mothball its properties and close its doors by the end of month. See Molokai Ranch Closing Its Doors.

The Ranch owns approximately 65,000 acres of the 165,800 acre island of Molokai (pop. 7,404), including 22 Luxury Rooms, 40 Beach Front Tentalows, and an 18 Holes of Golf. The Ranch ceased operations completely after its efforts to build a project at La'au Point on the west coast of the island were stymied by public opposition. The project would have included 200 homes, open space, and conservation areas. It would have generated approximately 100 jobs and the Ranch would have built 1,100 affordable homes, renovated Kaluakoi Hotel, and turned over 51,000 acres of Ranch land to a perpetual land trust for conservation or agriculture.

In, Molokai Ranch: A year after closure, times are hard but spirit is alive, the Maui News reports that "[t]he closures put 120 residents on this island of 7,500 people out of work[,] and that ". . . Molokai has the state's highest unemployment rate, at 12.7 percent, about twice the state average[.]" The former employees are living off of unemployment insurance (which ends soon), while a state taskforce investigates ways to help Molokai with its dire economic challenges.

Adding to Molokai's economic woes, a recent report shows that the median value of single family homes on Molokai dropped 67 percent from 2008 values. See Prudential's First Quarter 2009 Sales Activity.

Maui's Na Wai Eha Water Issue May Soon be Resolved

On March 13, 2008, the Commission on Water Resource Management designated the Waihee, Waiehu, Iao, and Waikapu Surface Water Hydrologic Units (a.k.a., Na Wai Eha) as surface water management areas. See Surface Water in Waihee, Waiehu, Iao, and Waikapu Streams on Maui Designated as State Surface Water Management Areas.  

The Commission's historic surface water determination (the first surface water management area determination in the Commission's history) was made in the context of the ongoing contested case hearing involving a petition to restore flows to the Na Wai Eha streams and applications for hydraulically related water use permits from diked, high-level water in the mountains.  

Stakeholders include the Hawaiian Commercial & Sugar Co. ("HC&S") who used the lions share of Na Wai Eha's water for sugar and more recently land development, local taro farmers and other small farmers, and the endemic and indigenous critters living in the unnaturally bone dry streams where they used to thrive.  The crux of the issue before the Commission is how to fairly reallocate approximately 70 million gallons of water diverted from the streams, in a post monoculture Hawaii.

A hearings officer was appointed to prepare a findings of fact, conclusions of law, and decision and order, which must be approved by the Commission at an upcoming meeting.  The Hearing Officer's Findings of Fact, Conclusions of Law, and Decision and Order was issued on Apr. 9, 2009.

Chris Hamilton of the Maui News breaks down the 210-page report in his article, Plan could rejuvenate waters of Na Wai Eha.

Reappointment of LUC Commissioners; Environmental Council Member Resigns Under Protest

New Appointments. The Governor recently reappointed Commissioners Thomas Contrades and Nicholas Teves to the State Land Use Commission, for terms to expire on June 30, 2013. The Senate must confirm their appointments which is scheduled for a public hearing before the Senate WTL Committee on April 15, 2009, at 2:45 p.m. in state capitol conference room 229. See GM596 and GM597.

Resignations. According to the Honolulu Advertiser, Robert A. King, Chair of the state’s Environmental Council, resigned from the Council "claiming the Lingle administration is not interested in the council’s recommendations." His term was set to expire in 2012.

According to the Senate Committee Report from his 2008 confirmation hearing, Mr. King is the President of Pacific Biodiesel and oversees operations in Hawaii, Oregon, and Texas, as well as construction in the United States and Asia. He is also a founding member of the Sustainable Biodiesel Alliance and the Hawaii Ag Alliance.

Mr. King was the Chair of the Council on February 22, 2007, when the Environmental Council ruled that the State Department of Transportation had erred in granting an exemption for harbor improvements from an environmental review. See Performance Audit on the State Administration’s Actions Exempting Certain Harbor Improvements To Facilitate Large Capacity Ferry Vessels From the Requirements of the Hawai‘i Environmental Impact Statements Law: Phase I, Auditor State of Hawaii, Report No. 08-09, p. 13, April 2008.

Environmental Review Without Secondary Impacts Analysis—Is Hawaii About to Throw Out the Baby with the Bathwater?

In an odd twist to the Hawaii Superferry drama, it has been suggested that in order to save the Hawaii Superferry, secondary impact analysis should be removed from Hawaii’s environmental review process. See Momentum grows at Capitol to bring Superferry back to Hawaii and Former State Attorney General Has Plan to Save The Superferry. What would this mean for Hawaii and what’s at stake?

The Hawaii Environmental Policy Act ("HEPA") in a Nutshell. Before we can make sense of secondary impacts we must first understand the HEPA process. HEPA establishes a system of environmental review that ensures environmental concerns are given appropriate consideration in decision making along with economic and technical considerations. HRS § 343-1. HEPA will potentially apply whenever an agency or applicant (hereinafter, “applicant”) initiates an action that requires a discretionary consent or approval. HRS § 343-2. An applicant must comply with HEPA if its proposed action is one of the triggers enumerated under HRS §343-5. The most common trigger is the proposed “use of state or county lands” (e.g., modification to a state or county highway as part of a residential project).

Once triggered, a discretionary approval cannot be granted and the proposed action cannot proceed until the permitting agency does one of the following:

1. Exemption. Find that the project is exempt from HEPA, because the proposed action “will probably have minimal or no significant effects on the environment.” HRS §343-6.; or


2. Finding of No Significant Impact (“FONSI”). If not exempt, an environmental assessment (“EA”) must be prepared at the earliest practicable time to determine whether an environmental impact statement (“EIS”) is required. HRS § 343-5(b). The permitting authority will review the EA and may issue a FONSI. If so the process ends here.; or


3. EIS. If the permitting authority finds that based on the EA “the proposed action may have a significant effect on the environment” then the applicant must prepare an EIS. Upon completion, the EIS must be accepted by the agency issuing the permit.

Embedded in the process are required periods for public notice, public comment, and specific limitations on when a person can sue for perceived deficiencies in the process. See HRS §§ 343-7, 343-5.

What are Secondary Impacts? The words “secondary impacts” are not found in the HEPA statute. HEPA requires only that environmental documents analyze “significant impacts”/“significant effects” that will be caused by the proposed action. HEPA defines significant effects as follows:

[T]he sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. HRS § 343-2.

Through HEPA, the legislature directed the Environmental Council to establish rules that, among other things, establish procedures to exempt actions that have minimal or no significant effects on the environment; prescribe the contents of an EA; prescribe the procedure for processing and accepting EIS documents; and establish criteria to determine when an EIS is acceptable. HRS § 343-6. These EIS Rules are codified under chapter 200 of the Hawaii Administrative Rules (“HAR”).

Under the EIS Rules “impacts” are far broader and more inclusive than “significant impacts” as defined under HEPA. The EIS Rules define “impacts”/“effects” as including “primary, secondary, or cumulative” effects. “Secondary impacts” are defined as follows:

"Secondary impact" or "secondary effect" or "indirect impact" or "indirect effect" means effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. HAR § 11-200-2.

"Cumulative impacts” are defined as follows:

“Cumulative impact” means the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. HAR § 11-200-2.

Secondary and cumulative impact analysis occurs in three significant steps under the EIS Rules: (1) when applying for an exemption, (2) when preparing an EA, and (3) when preparing an EIS. If this analysis is missing or lacking, the permit granting authority must deny the requisite request by the applicant.

What do secondary impacts have to do with the Hawaii Superferry? The Hawaii Superferry applied for an exemption from the HEPA process for its high capacity inter-island ferry system from the State Department of Transportation (“SDOT”). SDOT granted the exemption despite a February 2007 opinion issued by the Environmental Council stating that “the state failed to account for the secondary and cumulative impacts of Hawaii Superferry when it ruled that the project did not need an environmental impact statement.” See Marginalized. In August of 2007, the state supreme court similarly held that the exemption was invalid, because SDOT did not consider whether its facilitation of the Superferry would probably have a minimal or no significant impact, both primary (physical harbor improvements) and secondary (impacts resulting from Superferry use of harbor improvements), on the environment in its exemption determination. See Hawaii Supreme Court Publishes Superferry Opinion.

The voided exemption and the statutory requirement that the HEPA process be completed prior to operations ultimately led to the failure of the Superferry, which precipitated its ceasing operations and laying off its employees.

What’s at stake if the legislature bars the analysis of secondary impacts in the HEPA process? In order to remove secondary impact analysis from HEPA, the legislature would need to narrowly define “significant impact” to include only primary impacts and not include cumulative or secondary impacts. This would make the EIS Rules inconsistent with HEPA, forcing the Environmental Council to amend its rules.

For landowners, entrepreneurs, investors, and others seeking approval of discretionary permits unpredictable and overly complex land use laws exacerbate costs. Whether the scope of a HEPA document adequately addresses secondary impact analysis has been the source of litigation, confusion, and consternation, prompting the Office of Environmental Council (“OEQC”) to issue guidance in early 2008. See The OEQC Offers Advice on Secondary Impacts. As a consequence, actions that involve the construction of public facilities or structures (e.g., highways, airports, sewer systems, water resource projects, etc.) may well stimulate or induce secondary effects so that the scope of the HEPA analysis includes taking a hard look not only at an improvement on a state/county intersection, but also the entire project—imagine a 200-unit residential project that needs to make improvements to a state road for access to the project.

A full HEPA EIS can take years and hundreds of thousands of dollars in consultants’ costs and fees. In addition, an EIS document is usually thousands of pages and must be reproduced for public distribution. Anecdotally, practitioners in the business of preparing EIS documents have seen them grow significantly in scope and size since HEPA was first passed in 1974. See OEQC’s Document Site for examples.

Even when HEPA documents are prepared, the broad, unconstrained analysis required by the EIS Rules opens the door to litigation. Without guidance, a secondary impact analysis can take on the problem of the butterfly effect where one might argue that a project in Hilo has an effect on Niihau. There is not bright line, or even grey line, where a secondary and cumulative analysis should end.

For environmentalists, this would narrow the scope of their challenges to significant effects caused directly by the proposed project and not indirect or all matter of foreseeable effects. For example, in the case of the Superferry, the DOT could grant the exemption based on a significant impact analysis that looks only at the direct site of impact and not other impacts that are “incident to and a consequence of the primary impact.” Sierra Club v. SDOT. Arguably, Superferry would not be required to analyze its impact to marine wildlife, traffic, and other primary environmental impacts.

For the public, they would be unable to participate in the HEPA process if exemptions are more freely granted. However, existing state land use procedures mitigates this. First, an exemption is only granted if it is one of the enumerated exemptions under HAR § 11-200-8 and the proposed action must have a minimal or no significant effect on the environment. HRS § 343-6. The bar is still high for HEPA exemptions. Second, persons have an opportunity to sue under HRS § 343-7. Third, the EIS law applies to discretionary approvals. These approvals are generally subject to chapter 91, HRS public hearings. The decision making body is required to hear testimony from the public and to allow intervention of applicable persons in the permitting process. So, even though a project might be exempt from HEPA, the public still has an opportunity to voice its concerns to decision makers.

The middle road. Throwing out secondary and cumulative analysis might be premature without further study. Other state environmental policy acts (“SEPA”) and the National Environmental Policy Act of 1969 (“NEPA”) require secondary and cumulative analysis in their environmental documents. Hawaii should strive to keep HEPA as consistent with NEPA as possible to facilitate coordination for projects that require both HEPA and NEPA documents. For the most part, our courts have deferred to NEPA decisions in federal courts as guidance for interpreting HEPA.

No matter what side of the issue you are on, those who work with HEPA could agree that we need clear HEPA guidance either from the Environmental Council or the legislature so that our courts are comfortable with relying on agency decisions, as it should.

Hawaii Legislative Update: First Crossover

Thursday, April 16, is Second Crossover at the Hawaii State Legislature.

Second Crossover is a big deal in the life of a bill. The Hawaii Constitution requires that bills receive three readings on separate days in each body of the legislature before being presented to the governor for consideration. First Crossover, on March 12, was the first big separation of the chaff from the grain—that’s when bills originating in the House or Senate had its three readings and were passed over to the other body. Second Crossover is the last day for bills to receive a third reading in the receiving body (e.g., a bill that had three readings in the House, and crossed over to the Senate, must have its third and final reading on April 16). If a bill makes it through both bodies, it is either sent to a joint conference of House and Senate members to resolve version conflicts or it is transmitted to the governor for consideration.

It is unlikely that some bills, given its procedural posture at this time, will advance after Second Crossover (e.g., bills that were deferred in committee). However, those "zombie bills" are included in the list below, because a dead bill can come back to life through procedural voodoo outside of the usual course.

Here is a list of land use related bills:

Archaeological/Historic Preservation

HB520 HD1 SD1 & SB1672 SD1, Repeals the amendments made by Act 228, Session Laws of Hawaii 2008, which require the taking of archival photographs before conducting any demolition, construction, or alteration of any building over fifty years old or any building listed, or eligible for listing, on the Hawaii or National Register of Historic Places. Status: Will be set for conference.

SB1083 SD1 HD1, Includes additional native Hawaiian organizations for the DLNR to consult with to determine whether a burial site should be preserved in place or relocated and to develop a list of candidates for the burial councils. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB1143 SD1, Requires the state historic preservation officer to possess professional qualification in specific fields of study. Effective 7/1/2050. Status: Referred to WLO, LAB, FIN, referral sheet 28.

Affordable Housing

SB440 SD2 HD1 & SB440 SD2 HD1, Requires counties within 90 days to accept or reject a public infrastructure dedication, under specified conditions, as part of an affordable housing project, or the infrastructure is deemed dedicated. Status: Will be set for conference.

HB361 HD1, Expedites the construction of affordable housing units by requiring ministerial permits associated with the project to be issued by the State or county within 45 days of application. Status: Referred to EDH/TIA, WTL committees.

HB948 HD1 SD1, Increases the reserved housing (i.e., affordable housing) requirement for a planned development on a lot of at least 80,000 square feet in the Kakaako community development district, mauka area. Effective 7/1/2050. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee. Related Senate bill: SB1350 SD2. Status: he committees on HSG recommend that the measure be Passed, with Amendments.

HB1186 HD1, Eliminates the Hawaii community development authority's cash-in-lieu option for meeting reserved housing requirements, while retaining the option in cases of a fractional unit resulting from the percentage requirement calculation. Status: The committee(s) on WTL recommend(s) that the measure be Passed, Unamended.

HB1188 HD1, Increases the number of eligible households: (1) to which the counties may provide flexibility in land use density provisions and public facility requirements, and (2) to which the housing finance and development corporation may lease land for $1 per year per parcel to nonprofit organizations that provide affordable housing, by lowering threshold income limits from 140% to 100% of median incomes. Status: Referred to EDH/TIA committee.

HB1232 HD1 SD1, Requires a portion of housing units in residential developments constructed with state assistance, on land purchased or leased from the State and on land located in a community development district, to be sold pursuant to restrictions that ensure continued affordability over time. Effective 7/1/2020. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

SB754 SD1 HD2, Directs the legislative reference bureau to review the state laws related to affordable housing, to identify strategies to strengthen Hawaii's housing laws. Requires report to the 2010 legislature. Effective date: 7/1/2050. Status: Report adopted. referred to the committee(s) on FIN.

Fees, Taxes

HB39 HD2, Adds a $5 surcharge to the fee charged by a state agency for certain services; for example, any application for, or issuance or renewal of, a permit, license, certificate, registration, or other approval by a state agency and a lease or other conveyance of real or personal property of a state agency. Status: Deferred in WAM committee.

HB1404 HD1 SD1, Makes the general excise tax exemption amendments for timeshare operators and condominium submanagers permanent. Effective July 1, 2050. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee. Related Senate bill: SB1165 SD1. Status: The committee recommends that the measure be deferred.

HB1598 HD1, Taxes a lessor of real property for capital improvements made by a lessee upon the termination of a lease. Status: The committee(s) on CPN recommend(s) that the measure be Held.

HB1604, Imposes a tax upon the value of improvements surrendered to a lessor by a lessee, without compensation to the lessee, upon the expiration of a long-term non-residential lease. Status: The committee(s) on CPN recommend(s) that the measure be Held.

HB1744 HD1, Suspends for 6 years from 07/01/2009 to 06/30/2015 the distribution of transient accommodations tax revenues to the counties. Effective 07/01/2020. Status: The committee on WAM deferred the measure.

SB1111 SD1, Increases the rate of the transient accommodations tax beginning on July 1, 2009, and requires the additional revenues collected from the increase to be deposited into the general fund. Effective 7/1/59. Status: The committee recommends that the measure be deferred.

Transportation

HB139 HD2, Allows the State to enter into agreements with private entities to build, operate, own, or finance newly constructed transportation facilities including toll highways. Effective 07/01/2020. Status: Referred to TIA, WAM committees.

HB363 HD2 SD1, Establishes a commission on transit oriented development to facilitate affordable housing in transit oriented developments by better coordinating transportation and housing planning and programs; requires counties to offer incentives for affordable housing development; authorizes counties to establish priorities for affordable housing in transit oriented developments; requires counties to provide flexibility in public facility requirements for rental housing projects with units for tenants at or below median income levels, with forty per cent for tenants with incomes eighty per cent or below the median. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to TIA committee.

HB617 HD2, Creates a task force to recommend parameters for the creation of mass transit route economic zones including eligibility and benefits and incentives such as tax credits. Report to legislature, including process to designate economic zones and incentives to attract businesses and affordable housing to encourage ridership. Task force terminates on 06/30/10. Effective 07/01/2020. Status: Referred to TIA/EDT/EDH, WAM committee.

Condominiums

HB197 HD1, Gives boards of directors authority to install or allow the installation of solar energy or wind energy devices on the common elements of condominiums. Status: referred to ENE, CPN committees. Related Senate bill: SB606 SD2. Status: The committee recommends that the measure be deferred.

HB355 HD1, Limits any late fee for delinquent condominium common expense assessments to 20% of the monthly maintenance fee per month that any such assessment remains unpaid. Requires an association to give a unit owner 10 business days notice of any delinquent assessments before taking any action for which attorneys' fees may be assessed. Effective 01/01/2020. Status: Referred to CPN committee.

HB875, Extends the condominium dispute resolution pilot project until 6/30/11. Status: The committee on CPN deferred the measure. Related Senate bill: SB574 SD1. Status: he committees on CPC recommend that the measure be Passed, Unamended.

HB876 HD1 SD1, Increases the maximum amount of the special assessment for delinquent monthly common assessments that can be charged against a person who purchases a condominium unit. Expands limitations on association liability for elderly unit owners or residents aging in place to include disabled persons. Status: The committee(s) on JGO will hold a public decision making on 04-02-09 10:15 am in conference room 016. Related Senate bill: SB572 SD2. Status: Deferred in committee.

HB1639, Condominium Property Regimes; Common Expense Assessments
Clarifies the condominium property regime law with respect to common expense assessments. Status: The committee(s) on CPN deleted the measure from the public hearing scheduled on 03-27-09 10:00 am in conference room 229.

SB298 SD1, Increases the amount that condominium associations may recover in maintenance fees from the foreclosure of a condominium apartment from $1,800 to $3,600. Status: he committees on CPC recommend that the measure be Passed, Unamended.

SB595 SD1, Allows the board of directors of an association to allow owners to install antennas for amateur radios. Requires a written statement of the reasons for a denial. Status: The committee recommends that the measure be deferred.

Timeshares

SB1113 SD1, Repeals the requirement that time share units in an existing hotel in a county with a population in excess of 500,000 are required to contain at least 60 units at least 40% of which are to be made available for sale or rental as residential apartments. Status: he committees on WLO recommend that the measure be Passed, Unamended.

SB1352 SD2 HD1, Transfers fee time share interest from the land court system to the regular system. Status: Report adopted and referred to the committee(s) on FIN.

Real Estate, Realtors, Transactions

HB233 HD1, Excludes certified public accountants and licensed real estate brokers and salespersons from the definition of distressed property consultants in the Mortgage Foreclosure Rescue Fraud Prevention Act. Prohibits certain conduct relating to the acquisition of an ownership interest in distressed property by licensed real estate brokers and salespersons. Status: Referred to CPN, JGO committees.

HB268 HD1 SD1 & HB269 HD1 SD1, Both bills require the land court (HB268) and the bureau of conveyances (HB269) to provide, within 10 days and free of charge, an image and index of all instruments that contain real property transactions each week to the administrator of the real property division of a county to be agreed upon in a memorandum of understanding among the counties. Status: Both bills were report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee. Related Senate bills: SB521 SD2 HD1 & SB522 SD2 HD1, respectively. Both bills Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB271 SD1, Permits the registrar of the bureau of conveyances to accept electronic documents with electronic signatures for recording, to provide electronic documents in response to a request, and to convert existing records to electronic format. Status: The committee(s) on JGO will hold a public decision making on 04-02-09 10:15 am in conference room 016.

HB812 HD2 SD1, Allows a tenant who is a victim of domestic violence to terminate the tenant's rental agreement. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB874 HD2 SD1, Prohibits residential real property transfer fees required by a deed restriction or covenant, with certain exceptions. Takes effect January 1, 2046. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee. Related Senate bill: SB1241 SD2. Status: The committee recommends that the measure be deferred until 04-02-09.

HB1593 HD1, Clarifies provisions contained in long-term commercial and industrial ground leases. Protects agriculturally suitable lands. Status: Referred to EDT/WTL, JGO committee.

SB764 SD2 HD1, Clarifies standards for interpreting the terms "fair and reasonable rent" in contract renegotiations of long-term commercial and industrial ground leases; requires subtenants with subleases providing for lessee's recovery of ground lease rent, to be charged their pro-rata share of the renegotiated fair and reasonable rent. Status: The committee recommends that the measure be deferred until 04-03-09.

SB771 SD1, Requires a real estate appraiser to rely on the Uniform Standards of Professional Appraisal Practice when acting as an appraiser in an arbitration to guide the arbitrator's decision regarding an award. Status: Referred to CPC, referral sheet 28.

SB887 SD1 HD1, Revises the escrow depository law to: (1) clarify which escrow transactions are covered by the statute and which are not; (2) update the statute to adequately reflect the present day size of the transactions routinely handled by the industry; (3) provide for more flexibility in supervising and regulating the industry; and (4) ensure adequate protection for the consumer. Effective 01/01/2090. Status: Bill scheduled to be heard by FIN on Thursday, 04-02-09 2:00PM in House conference room 308.

SB6 SD2, Permits the registrar of the bureau of conveyances to accept electronic documents with electronic signatures for recording, to provide electronic documents in response to a request, and to convert existing records to electronic format. Effective 7/1/2050. Status: Referred to WLO, JUD, FIN, referral sheet 27.

SB34 SD1, Excludes licensed real estate brokers and salespersons from the definition of distressed property consultants in the Mortgage Foreclosure Rescue Fraud Prevention Act. Prohibits certain conduct relating to the acquisition of an ownership interest in distressed property by licensed real estate brokers and salespersons. Status: he committee(s) recommends that the measure be deferred until 04-03-09.

Public Utilities, Energy Conservation, Energy Production

HB244 HD1, Directs public utilities to establish discounted rates for providing services used for agricultural activities located in agricultural districts. Status: Referred to WTL, CPN committees.

HB245 HD1 SD1, Allows the development of renewable energy facilities on conservation and agricultural districts and special management areas; provided that the facilities comply with all applicable regulatory laws. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

HB589 HD1 SD1, Exempts leases and easements for renewable energy projects from subdivision requirements; defines "subdivision requirements"; requires agencies to accept instruments for recording and filing. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

HB590 HD1 SD1, Sets a time limit for the filing of the diligence report with the energy resources coordinator; allows the energy resources coordinator to deem a permit approved if no further action or processing is reported by the permitting agency within eighteen months of the completed application. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB591 HD1 SD1, Authorizes preferential rates for the purchase of renewable energy produced in conjunction with agricultural activities. Status: The committee(s) on CPN has scheduled a public hearing on 04-02-09 10:00AM in conference room 229.

SB50 SD1 HD1, Sets terms and conditions for leases of public lands to renewable energy producers, including requiring a public hearing, project completion, design, and financing documentation, and limitations on terminating or altering existing leases of public lands affected. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB241 SD2, Establishes specific performance standards and mandates the use of cool roofs on all new residential and commercial construction in Hawaii beginning in 2011. Status: The committee(s) recommends that the measure be deferred.

SB390 SD2 HD1, Amends the law mandating solar water heater systems for single-family dwellings by clarifying its application to new dwellings and clarifying variance request procedures and authority. Effective 1/1/2050. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on CPC.

Land Use, Planning, Zoning

HB570 HD1, Requires certain agencies to account for sea-level rise and minimize risk from coastal hazards such as erosion, storm inundation, hurricanes, and tsunamis. Also preserves public shoreline access and authorizes the counties to account for annual shoreline erosion rates. Status: Referred to WTL/TIA committees.

HB593 HD2, Allows DLNR to establish an interim construction moratorium along Kailua Beach to protect development from coastal hazards, to conserve and protect beaches, to preserve recreational uses of coastal resources, and to minimize future impacts to the coastal ecosystem. Effective July 1, 2020. Status: The committee(s) on WTL recommend(s) that the measure be Passed, with Amendments. Related Senate bill: SB1318 SD1 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB610 HD2 SD1, Amends the Hawaii State Planning Act to include references to science and technology initiatives in Hawaii. Amends the department of business, economic development, and tourism's reporting requirement to the legislature on the growth industries of Hawaii. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee.

HB975 HD1 SD1, Authorizes the Agribusiness Development Corporation to acquire agricultural water systems to provide water for irrigation of agricultural lands. Exempts agricultural water systems from the subdivision requirements of county ordinances. Provides conveyance requirements for the property owner. Effective 07/01/2020. Status: he committee(s) on WAM will hold a public decision making on 04-02-09 9:30 AM in conference room 211.

HB1008 HD1, Protects and promotes the proper use of Hawaii's best agricultural lands by requiring conditions of approval for subdivisions of agricultural land into smaller lots and farm dwellings, thereby ensuring meaningful agricultural use. Status: Referred to WTL, TIA committees.

HB1047 HD1, In a petition for a declaratory order for IAL designation: (1) Requires the agricultural land seeking reclassification to be on the same island as the IAL; and (2) Requires the LUC to evaluate the petition using its general-application decision-making criteria. Status: Referred to WTL committee.

HB1048 HD1, Gives the counties greater authority and flexibility to define uses and regulate land use in the State Rural District consistent with broad State policies and standards. Status: Referred to WTL/TIA committee.

HB1273 HD1 SD1, Allows the use of clotheslines on any privately owned single-family residential dwelling or townhouse. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to CPN committee. Related Senate bill: SB1338 SD2 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB1351 HD2, Allows owners of contiguous parcels within the agricultural district to establish private agricultural parks registered with the Department of Agriculture. Status: Referred to WTL committee.

HB1436 HD1 SD1, Amends the permitted uses of land within the agricultural district with soil classifications of A or B to include agricultural education programs conducted on a farming operation. Status: The committee(s) on WTL has scheduled a public hearing on 04-01-09 2:45 PM in conference room 229.

HB1693 HD1, Sets forth requirements for the City & County of Honolulu's Ewa Development Plan. Status: Referred to TIA, WTL committee.

SB536 SD1 HD1, Requires department of business, economic development, and tourism, assisted by a temporary advisory committee, to develop a statewide starlight reserve strategy, including an intelligent statewide lighting law, to preserve the quality of the night sky and its associated cultural, scientific, astronomical, natural, and landscape-related values. Takes effect June 30, 2050. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB673, Allows the counties to impose within their zoning ordinances performance standards on group living facilities. Status: The committee(s) recommends that the measure be deferred.

SB468 SD1 HD1, Requires certain agencies to account for sea-level rise and minimize risk from coastal hazards such as erosion, storm inundation, hurricanes, and tsunamis. Also preserves public shoreline access and authorizes the counties to account for annual shoreline erosion rates. Creates exception from shoreline setback rules for existing Waikiki beach structures and properties subject to Waikiki Beach Reclamation Agreement, to extent agreement conflicts with setback rules. Status: The committee(s) recommends that the measure be deferred until 04-03-09.

SB1152 HD1, Establishes a one hundred year moratorium on certain building and development projects on agricultural lands located in state senate districts twenty-two and twenty-three. Status: The committee(s) recommends that the measure be deferred until 04-03-09.

Environmental Compliance

HB640 HD1 SD1, Exempts from the purview of chapter 343, HRS, the environmental review law, primary actions that require a ministerial permit, that involve secondary actions relating to infrastructure development within public right-of-ways that have no significant effect on the environment. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB1144 HD1, Authorizes the development and use of programmatic safe harbor agreements and programmatic habitat conservation plans that cover multiple landowners or a class of landowners or extend over a wide area or region. Status: The committee on ENE deferred the measure.

SB942 SD1, Ensure compliance with the federal Energy Policy Act of 2005 regarding underground storage tanks. Status: The committees on JUD recommend that the measure be Passed, Unamended.

SB1053 SD2, Allows an agency to transfer the responsibility for preparing and funding environmental assessments and environmental impact statements to the user of the state or county land or new improvements to be constructed with state or county funds necessary to accommodate the user's operations. Status: Referred to EEP, FIN, referral sheet 27.

SB1259 SD2 HD1, Amends chapter 128D, Hawaii Revised Statutes (environmental response law), to be consistent with federal law, which protects innocent purchasers of, and property owners who are contiguous to, contaminated property from liability for addressing contamination they did not cause. Status: The committees on JUD recommend that the measure be Passed, with Amendments.

Ceded Lands, Hawaiian Home Lands

HB921 HD1 SD1, Permits DHHL to negotiate lease terms beyond sixty-five years, and provides a right of first refusal to previous lessees. Prohibits the sale or transfer of ceded lands until the unrelinquished claims of the native Hawaiian people are resolved or reconciliation between the State and the native Hawaiian people is no longer supported. Status: Re-Referred to WTL, JGO/WAM committees. Related Senate bill: SB1085 SD2 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on WLO/JUD.

HB949 HD1, Authorizes the department of Hawaiian home lands to issue long term commercial leases. Effective 07/01/2020. Status: Referred to WTL, WAM committees.

SB1677 SD1 HD1, Requires majority vote of the legislature or two-thirds vote of house or senate to disapprove the sale or exchange of state-held lands to non-state entities or persons; requires community briefing where land located prior to sale or exchange. Status: Bill scheduled to be heard by FIN on Wednesday, 04-01-09 3:00PM in House conference room 308.

Landowner Liability

HB951 HD1 SD1, Relieves landowner of liability for any damage, injury, or harm to persons or property outside the boundaries of the landowner's land caused by naturally occurring land failure originating on unimproved land, except for harm arising from negligent or wanton acts by the owner of the unimproved land. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

SB1088 SD2 HD1, Amends definition of obstruction for access to public property. Creates a private right of action for a person to enforce the prohibition of obstruction. Applies, inter alia, to private landowners who obstruct "passageway[s] established by dedication, condemnation, customary use, or open and continuous public use." Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on JUD.

Open Meetings, Sunshine Law

HB1148 HD1, With respect to notice requirements for a public agency hearing, requires state boards to electronically file meeting notices on the state calendar rather than in the Lt. Governor's office. Status: Referred to JGO committee.

SB906, Expands ability of a board or commission to facilitate public meetings through available interactive conferencing technology. Status: Referred to JUD, FIN, referral sheet 26.

SB1661 SD1, Clarifies permissible attendance and procedures for board members to attend meetings of other boards, departments, agencies, and hearings of the legislature. Effective 7/1/2050. Status: Referred to JUD, referral sheet 28.

State Building Code

SB1645 SD1, Directs the state building code council to review studies and structural tests of bamboo as a construction material, and to recommend standards and criteria for the use of bamboo as an accepted construction material. Status: The committee recommends that the measure be deferred.

For current status on the above bills, click on the above hyperlinks or see Bill Status at capitol.hawaii.gov.