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Commentary and insight on the complex, multifaceted areas of land use and environmental law.
Saturday, May 30, 2009
Friday, May 29, 2009
Maui Planning Commission Approves First B&B Permit Under New Law
The Honolulu Advertiser reported that the Maui Planning Commission has approved the first application under its new bed-and-breakfast ("B&B") ordinance that allows B&B home businesses within the county's agricultural zoning district.
The Planning Commission approved the special use permit at its May 26, 2009 meeting. The item was listed on the Commission's Agenda as follows:
For more on B&Bs see Bed and Breakfasts and Transient Vacation Rentals/Units.
The Planning Commission approved the special use permit at its May 26, 2009 meeting. The item was listed on the Commission's Agenda as follows:
JOHN G. CAMOU and SANDY BECK CAMOU requesting a State Land Use Commission Special Use Permit in order to operate a Bed and Breakfast operation on 1.2 acres of land in the State Agricultural District at 555 Haiku Road TMK: 2-7-008: 041, Haiku, Island of Maui. (SUP2 2008/0005) (J. Prutch)Even with the new local B&B law, a state special use permit is required because a B&B is not an allowed use within the state agricultural district pursuant to HRS Chapter 205. Consequently, HRS § 205-6 provides that the Commission may allow uses within the state agricultural district other than those for which the district is classified if it finds that the proposed use is "unusual and reasonable" and that it is consistent with other local rules the county may adopt. In addition, the statute requires the Commission to counsult with the state land use commission, the state office of planning, and the state department of agriculture. Because the property is under 15 acres, the Commission has final approval; otherwise, the state land use commission has final approval.
For more on B&Bs see Bed and Breakfasts and Transient Vacation Rentals/Units.
Friday, May 22, 2009
Appellate Court Issues Opinion in Turtle Bay EIS Case
The Hawaii Intermediate Court of Appeals ("ICA") recently issued an opinion in favor of Kuilima Resort Company ("Kuilima") the owner and operator of the Turtle Bay Resort in Unite Here! Local 5 v. City and County of Honolulu.
The Project
Kuilima's predecessor prepared an EIS that was accepted by the City's planning department in 1985. The EIS studied the environmental impacts of the proposed project which included approximately 1,450 hotel rooms, a golf course, 2,060 condominium units, a commercial complex, and other amenities. Much of the proposed project was not completed (for various reasons) and lay dormant until 2005 when Kuilima submitted a subdivision application. The Turtle Bay project has been the target of consternation by area residents as discussed here and here.
The Circuit Court
The primary parties include Keep the North Shore Country and the Sierra Club (the "Plaintiffs") on one side and the City and County of Honolulu ("City") and Kuilima on the other.
In 2006, the City granted preliminary subdivision approval so that Kuilima could proceed with components of the project studied in the 1985 EIS. Upon subdivision approval, the Plaintiffs sought declaratory and injunctive relief to stop the project in circuit court. The Plaintiffs argued that a supplemental EIS ("SEIS") should have been prepared prior to consideration of the subdivision application by the City.
The circuit court ruled in favor of Kuilima and concluded that Hawaii Environmental Protection Act ("HEPA") regulations should be interpreted such that "an agency can require an SEIS only when there is a substantive change in the project itself." (Emphasis added.) Thus, an SEIS was not required because the Plaintiffs had not shown a substantive change in the project.
The ICA
The Plaintiffs appealed to the ICA. The ICA upheld the circuit court's order in favor of Kuilima. Significantly, the ICA set out the following two-step inquiry to determine whether an SEIS is necessary:
The ICA did not adopt the Plaintiffs' interpretation of the HEPA rules. In particular, the ICA noted that Hawaii's HEPA rules require an SEIS only upon a "substantive change in the project or action" and not where there are "substantial changes or significant new circumstances or information relevant to the project and action," as with the federal and California laws relied upon by the Plaintiffs.
The Hawaii Supreme Court and Beyond
The Turtle Bay opinion may not be the final opinion in this matter.
The Plaintiffs may seek certiorari from the Hawaii Supreme Court, in which case, the dissenting opinion by Judge Nakamura might be significant. Nakamura supports the broader approach to SEIS determinations advocated by the Plaintiffs. Nakamura would "require the preparation of an [SEIS] when significant changes to the anticipated environmental impacts of a proposed action become apparent such that 'an essentially different action' is being proposed," including "changes to the design of the project itself, changes to conditions surrounding the project, or the discovery of new information," similar to NEPA and CEQA.
Nakamura also dissented from the majority regarding the significance of a subdivision application for purposes of considering an SEIS. In the majority's opinion, there was no need to consider whether the subdivision application was a "trigger" under HEPA since it is part of the "action" that was proposed and studied in the 1985 EIS. However, Nakamura suggests a case-by-case, totality of circumstances approach--i.e., whether or not an agency has "sufficient discretion in rendering its decision on the Subdivision Application that its decision-making would meaningfully and usefully be informed by an SEIS." Under the majority's opinion, there is one trigger for HEPA analysis, so long as the project does not change, no future HEPA analysis is required. Under Nakamura's dissenting opinion, every subsequent agency approval could be a "trigger" under HEPA. If an action is a trigger, it would swallow the SEIS rules because there would no longer be a need to look at whether the project has changed. Instead, if there was a trigger, the HEPA process must be started anew. See, e.g., When a Trigger is Not a Trigger Under Hawaii's Environmental Impact Statement Law (HRS Chapter 343).
As mentioned here previously, an SEIS challenge is a perennial issue in Hawaii environmental law, because HRS chapter 343, Hawaii's Environmental Impact Statement Law, lacks guidance and HAR chapter 11-200, Environmental Impact Statement Rules, lacks clarity. This recent ICA decision has helped to clarify some of these issues.
For more on environmental laws that impact Hawaii, see Environmental Law.
The Project
Kuilima's predecessor prepared an EIS that was accepted by the City's planning department in 1985. The EIS studied the environmental impacts of the proposed project which included approximately 1,450 hotel rooms, a golf course, 2,060 condominium units, a commercial complex, and other amenities. Much of the proposed project was not completed (for various reasons) and lay dormant until 2005 when Kuilima submitted a subdivision application. The Turtle Bay project has been the target of consternation by area residents as discussed here and here.
The Circuit Court
The primary parties include Keep the North Shore Country and the Sierra Club (the "Plaintiffs") on one side and the City and County of Honolulu ("City") and Kuilima on the other.
In 2006, the City granted preliminary subdivision approval so that Kuilima could proceed with components of the project studied in the 1985 EIS. Upon subdivision approval, the Plaintiffs sought declaratory and injunctive relief to stop the project in circuit court. The Plaintiffs argued that a supplemental EIS ("SEIS") should have been prepared prior to consideration of the subdivision application by the City.
The circuit court ruled in favor of Kuilima and concluded that Hawaii Environmental Protection Act ("HEPA") regulations should be interpreted such that "an agency can require an SEIS only when there is a substantive change in the project itself." (Emphasis added.) Thus, an SEIS was not required because the Plaintiffs had not shown a substantive change in the project.
The ICA
The Plaintiffs appealed to the ICA. The ICA upheld the circuit court's order in favor of Kuilima. Significantly, the ICA set out the following two-step inquiry to determine whether an SEIS is necessary:
(1) Whether the action (the Project) has changed substantively in size, scope, intensity, use, location or timing? And if so,If the agency answers "no" to the first question, it need not consider the second part of the inquiry and no other statement will be required pursuant to HAR sec. 11-200-26 and HRS sec. 343-5(g).
(2) Will the change in any of these characteristics likely have a significant effect and result in individual or cumulative impacts not originally disclosed in the EIS?
The ICA did not adopt the Plaintiffs' interpretation of the HEPA rules. In particular, the ICA noted that Hawaii's HEPA rules require an SEIS only upon a "substantive change in the project or action" and not where there are "substantial changes or significant new circumstances or information relevant to the project and action," as with the federal and California laws relied upon by the Plaintiffs.
The Hawaii Supreme Court and Beyond
The Turtle Bay opinion may not be the final opinion in this matter.
The Plaintiffs may seek certiorari from the Hawaii Supreme Court, in which case, the dissenting opinion by Judge Nakamura might be significant. Nakamura supports the broader approach to SEIS determinations advocated by the Plaintiffs. Nakamura would "require the preparation of an [SEIS] when significant changes to the anticipated environmental impacts of a proposed action become apparent such that 'an essentially different action' is being proposed," including "changes to the design of the project itself, changes to conditions surrounding the project, or the discovery of new information," similar to NEPA and CEQA.
Nakamura also dissented from the majority regarding the significance of a subdivision application for purposes of considering an SEIS. In the majority's opinion, there was no need to consider whether the subdivision application was a "trigger" under HEPA since it is part of the "action" that was proposed and studied in the 1985 EIS. However, Nakamura suggests a case-by-case, totality of circumstances approach--i.e., whether or not an agency has "sufficient discretion in rendering its decision on the Subdivision Application that its decision-making would meaningfully and usefully be informed by an SEIS." Under the majority's opinion, there is one trigger for HEPA analysis, so long as the project does not change, no future HEPA analysis is required. Under Nakamura's dissenting opinion, every subsequent agency approval could be a "trigger" under HEPA. If an action is a trigger, it would swallow the SEIS rules because there would no longer be a need to look at whether the project has changed. Instead, if there was a trigger, the HEPA process must be started anew. See, e.g., When a Trigger is Not a Trigger Under Hawaii's Environmental Impact Statement Law (HRS Chapter 343).
As mentioned here previously, an SEIS challenge is a perennial issue in Hawaii environmental law, because HRS chapter 343, Hawaii's Environmental Impact Statement Law, lacks guidance and HAR chapter 11-200, Environmental Impact Statement Rules, lacks clarity. This recent ICA decision has helped to clarify some of these issues.
For more on environmental laws that impact Hawaii, see Environmental Law.
Saturday, May 2, 2009
Land Use Commission Revokes Agricultural Boundary Designation for Bridge Aina Le'a LLC
On May 1, 2009, the State Land Use Commission unanimously voted to revert Bridge Aina Le'a LLC's property to its former classification, agriculture, pursuant to HAR Section 15-15-93. This rarely used, extraordinary remedy was a response to Bridge's failure to comply with the Commission's January 17, 1989 Order, as amended on July 9, 1991. Without the urban designation, the project cannot proceed.
The proposed project located on Waikoloa, island of Hawaii, consisted of 1, 924 residential units, a 25-acre commercial parcel, a 30-acre school site to be dedicated to the State Department of Education, 26-acres of neighborhood parks, and a network of biking/walking paths. As part of the Commission's 1989 grant of district boundary amendment from agricultural to urban, the Commission required that 60 percent of the proposed residential units be set aside for affordable housing (i.e., made affordable to residents earning 120 percent of the median income).
In 2005, 16 years after the urban designation, Bridge petitioned the Commission for an amendment to the affordable housing condition, because the 60 percent requirement made the project economically infeasible. By Order dated November 25, 2005, the Commission granted Bridge's request and reduced the affordable housing requirement to 20 percent. The new requirement required that half of the affordable homes be made affordable to residents earning 120 percent of the median income and the other half to residents earning 140 percent of the median income. The total amount of affordable homes required was 385. The Commission also required that the 385th unit be ready for occupancy within 5 years from November 17, 2005, i.e., November 17, 2010.
Under HAR Section 15-15-93(b), the Commission "shall" issue an order to show cause when:
A final findings of fact, conclusions of law, and decision and order in this matter is forthcoming.
The proposed project located on Waikoloa, island of Hawaii, consisted of 1, 924 residential units, a 25-acre commercial parcel, a 30-acre school site to be dedicated to the State Department of Education, 26-acres of neighborhood parks, and a network of biking/walking paths. As part of the Commission's 1989 grant of district boundary amendment from agricultural to urban, the Commission required that 60 percent of the proposed residential units be set aside for affordable housing (i.e., made affordable to residents earning 120 percent of the median income).
In 2005, 16 years after the urban designation, Bridge petitioned the Commission for an amendment to the affordable housing condition, because the 60 percent requirement made the project economically infeasible. By Order dated November 25, 2005, the Commission granted Bridge's request and reduced the affordable housing requirement to 20 percent. The new requirement required that half of the affordable homes be made affordable to residents earning 120 percent of the median income and the other half to residents earning 140 percent of the median income. The total amount of affordable homes required was 385. The Commission also required that the 385th unit be ready for occupancy within 5 years from November 17, 2005, i.e., November 17, 2010.
Under HAR Section 15-15-93(b), the Commission "shall" issue an order to show cause when:
. . . it has reason to believe that there has been a failure to perform according to the conditions imposed, or the representations or commitments made by the petitioner, the commission shall issue and serve upon the party or person bound by the conditions, representations, or commitments, an order to show cause why the property should not revert to his former land use classification or be changed to a more appropriate classification.According to the Commission's January 9, 2009 Minutes, Commissioner Judge, with the support of fellow commissioners, issued an Order to Show Cause on Bridge for its failure to move forward with the project. Specifically, the Commission pointed out Bridge's failure to obtain permits or develop infrastructure since the Commission's 2005 extension.
A final findings of fact, conclusions of law, and decision and order in this matter is forthcoming.
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