The Department of Transportation Services, City and County of Honolulu, has completed a Public Review Draft of the Oahu Bike Plan, July 2009.
The Plan provides policy and program recommendations and identifies an integrated network of on-road bike lanes and routes and off-road paths that link people to favorite and frequently visited destinations. The Plan is updated every five years.
Oahu's twenty-year vision for bicycling is: "Oahu is a bicycle-friendly community where bicycling is safe, viable, and popular travel choice for residents and visitors of all ages."
Download the full report at www.oahubikeplan.org.
Commentary and insight on the complex, multifaceted areas of land use and environmental law.
Thursday, July 30, 2009
Friday, July 24, 2009
Public Transportation Saves 37 Million Metric Tons of Carbon Annually and 4.2 Billion Gallons of Gasoline
The American Public Transportation Association (APTA) recently sponsored the CQ Forum on Climate Change Policy and Transportation
According to APTA President William Millar, public transportation saves 37 million metric tons of carbon annually, as well as 4.2 billion gallons of gasoline. Sen. Benjamin L. Cardin (D-Md.), spoke about how climate change is a "direct threat" on national security with a measurable rise in sea level and harsh weather conditions. He warned that energy dependence affects the economy, security, and the environment.
Sen. Thomas Carper (D-Del.), spoke about the Clean Low-Emissions Affordable New Transportation Equity Act (CLEAN TEA). Introduced as H.R. 1329 on March 5, 2009, the purpose of CLEAN TEA, generally, is to amend title 49, United States Code, to support efforts by States and eligible local and regional entities to develop and implement plans to reduce greenhouse gas emissions from the transportation sector. The CRS summary of the bill provides as follows:
According to APTA President William Millar, public transportation saves 37 million metric tons of carbon annually, as well as 4.2 billion gallons of gasoline. Sen. Benjamin L. Cardin (D-Md.), spoke about how climate change is a "direct threat" on national security with a measurable rise in sea level and harsh weather conditions. He warned that energy dependence affects the economy, security, and the environment.
Sen. Thomas Carper (D-Del.), spoke about the Clean Low-Emissions Affordable New Transportation Equity Act (CLEAN TEA). Introduced as H.R. 1329 on March 5, 2009, the purpose of CLEAN TEA, generally, is to amend title 49, United States Code, to support efforts by States and eligible local and regional entities to develop and implement plans to reduce greenhouse gas emissions from the transportation sector. The CRS summary of the bill provides as follows:
Clean, Low-Emission, Affordable, New Transportation Efficiency Act - Establishes the Low Greenhouse Gas Transportation Fund.The panel discussion included:
Requires the Administrator of the Environmental Protection Agency (EPA), for each of calendar 2012-2050, to auction 10% of emission allowances established under any EPA program providing for the reduction of greenhouse gas emissions and the auctioning of emission allowances.
Requires deposit of auction proceeds into the Fund to implement state and eligible regional or local entity greenhouse gas emission reduction plans, and provide funding to transit projects that help reduce such emissions.
Requires states and eligible regional or local entities representing populations of more than 200,000 people to: (1) establish goals for reducing greenhouse gas emissions from the transportation sector for the next 10 years; and (2) develop transportation greenhouse gas emission reduction plans, including supporting lists of prioritized transit projects, that are integrated into state and eligible regional or local entity long-range transportation and transportation improvement plans.
Directs the Secretary of Transportation and the EPA Administrator to contract with the Transportation Research Board of the National Academy of Sciences to study and report recommendations for improving research tools and federal data sources necessary to assess the effect of state and local transportation, land use, and environmental plans on motor vehicle use rates and transportation sector greenhouse gas emissions.
- Kevin Desmond, King County Metro Transit Division/Department of Transportation, Seattle
- Deron Lovaas, Natural Resources Defense Council
- Caitlin Rayman, Maryland Department of Transportation
- Daniel J. Weiss, Center for American Progress
Thursday, July 23, 2009
Court Allows Residence that Hovers Eight Feet Above Native Burials to Proceed
On October 2, 2008, a Kauai judge issued an order ("2008 Order") which allows a developer, Joseph Brescia, to continue building a house over six Hawaiian burial sites. Brescia was granted the required land use entitlements and permits by the County of Kauai to build a 2,300 square foot residence. The structure was to be built eight feet above the ground atop concrete footings.
The case primarily deals with a failure to follow Hawaii's historic preservation laws under HAR Chapter 13-300 and HRS Chapter 6E. The facts are that as part of the planning process, Brescia procured an archaeological inventory survey which uncovered thirty prehistoric Native Hawaiian burials. A burial treatment plan was prepared and submitted to the State Historic Preservation Division ("SHPD"). The plan included moving seven grave sites. The burial treatment plan was presented to the Kauai Burial Council, who recommended preservation in place for all thirty burials. The plan was subsequently revised accordingly. However, the subsequent revised plan was not again presented to the Burial Council by SHPD.
Based on SHPD's failure to consult with the appropriate parties prior to approving the plan, the Court issued a partial injunction until SHPD consults with the burial council, appropriate Hawaiian organizations, and any recognized lineal descendants on the revised burial plan. These parties will assist in fashioning appropriate burial treatment measures that are "culturally appropriate", including determining the need for buffers, landscaping, and site restoration. However, the court allowed Brescia to proceed with construction so long as it does not "further demolish, alter, or prevent access" to the burials under his house.
In a July 21, 2009 decision, the Court denied a motion to enforce the 2008 Order, because Brescia's activity on the property has not further demolished, altered, or prevented access to the burials.
The case primarily deals with a failure to follow Hawaii's historic preservation laws under HAR Chapter 13-300 and HRS Chapter 6E. The facts are that as part of the planning process, Brescia procured an archaeological inventory survey which uncovered thirty prehistoric Native Hawaiian burials. A burial treatment plan was prepared and submitted to the State Historic Preservation Division ("SHPD"). The plan included moving seven grave sites. The burial treatment plan was presented to the Kauai Burial Council, who recommended preservation in place for all thirty burials. The plan was subsequently revised accordingly. However, the subsequent revised plan was not again presented to the Burial Council by SHPD.
Based on SHPD's failure to consult with the appropriate parties prior to approving the plan, the Court issued a partial injunction until SHPD consults with the burial council, appropriate Hawaiian organizations, and any recognized lineal descendants on the revised burial plan. These parties will assist in fashioning appropriate burial treatment measures that are "culturally appropriate", including determining the need for buffers, landscaping, and site restoration. However, the court allowed Brescia to proceed with construction so long as it does not "further demolish, alter, or prevent access" to the burials under his house.
In a July 21, 2009 decision, the Court denied a motion to enforce the 2008 Order, because Brescia's activity on the property has not further demolished, altered, or prevented access to the burials.
Wednesday, July 22, 2009
Economic Conditions Increase Claims to Rescind Real Estate Puchase Contracts
Here's an interesting topical CLE by the ABA: "The Land Sales Battle: Sellers and Purchasers Spar Over the Interstate Land Sales Full Disclosure Act."
According to the CLE's promotional email: "As the economy has worsened, a tremendous number of claims to rescind purchase contracts have been filed in connection with the Interstate Land Sales Full Disclosure Act "ILSA" and its exemptions from registration."
The ILSA is administered by the U.S. Department of Housing and Urban Development ("HUD"). The intent of Congress was to protect consumers from fraud and abuse in the sale or lease of land. The ILSA was enacted by Congress in 1968 and patterned after the Securities Law of 1933. Among other things, the ILSA requires land developers to register subdivisions of 100 or more non-exempt lots with HUD and to provide each purchaser with a disclosure document called a Property Report. The Property Report contains relevant information about the subdivision and must be delivered to each purchaser before the signing of the contract or agreement.
For more information see HUD's Interstate Land Sales web site.
According to the CLE's promotional email: "As the economy has worsened, a tremendous number of claims to rescind purchase contracts have been filed in connection with the Interstate Land Sales Full Disclosure Act "ILSA" and its exemptions from registration."
The ILSA is administered by the U.S. Department of Housing and Urban Development ("HUD"). The intent of Congress was to protect consumers from fraud and abuse in the sale or lease of land. The ILSA was enacted by Congress in 1968 and patterned after the Securities Law of 1933. Among other things, the ILSA requires land developers to register subdivisions of 100 or more non-exempt lots with HUD and to provide each purchaser with a disclosure document called a Property Report. The Property Report contains relevant information about the subdivision and must be delivered to each purchaser before the signing of the contract or agreement.
For more information see HUD's Interstate Land Sales web site.
Friday, July 17, 2009
State Land Use Commission to Hold Public Hearings on Proposed Rule Changes
The State Land Use Commission will hold public hearings on its proposed rule changes on August 17, 2009, pursuant to rule-making requirements under HRS Chapter 91.
The proposed rules are posted at the Commission's web site at luc.state.hi.us/admin_rules.htm.
The Commission is responsible for, among other things, granting district boundary amendments to the state land use districts and special permits for uses not permitted by right in the Agricultural District, for properties over 15 acres.
The proposed rules are posted at the Commission's web site at luc.state.hi.us/admin_rules.htm.
The Commission is responsible for, among other things, granting district boundary amendments to the state land use districts and special permits for uses not permitted by right in the Agricultural District, for properties over 15 acres.
Thursday, July 16, 2009
Hawaii Supreme Court Ruling Closes Kaimana Beach Surf School
In January 2009, I wrote about Hans Hedemann Surf School, which is located on the ground floor in a space called “Shop #7” of the New Otani Kaimana Beach Hotel. See Mitigation Allows Surf School to Continue as Nonconforming Use.
Certain groups, including Save Diamond Head Waters, LLC (collectively, "SDHW"), challenged the use of Shop #7 for the Surf School. In 2004, the Director of planning for the City determined that the school operates in compliance with the regulations of the zoning ordinance for nonconformities, subject to certain conditions. SDHW appealed the Director's decision to the zoning board of appeals, which affirmed the Director's Ruling. SDHW appealed to the circuit court, which vacated the ZBA's decision "insofar as it allows the operation of a commercial surf school at [the Hotel]." The Surf School appealed to the ICA. The ICA reversed the circuit court's judgement, concluding that the Director had discretion to grant the impact-ameliorating conditions and did not abuse his discretion in finding that the Surf School's use of Shop # 7 constituted a valid change in nonconforming use of Shop # 7, because the "ruling was reasonably based on the evidence before the Director and constituted a reasonable application of the applicable zoning ordinance and the [planning department's] previous interpretation of that ordinance."
In 2009, the Hawaii Supreme Court accepted SDHW's Application for Writ of Certiorari. The Hawaii Supreme Court (1) vacated the ICA's Opinion and (2) affirmed the circuit court's amended final judgment on the grounds that the Director's mixed finding of fact and conclusion of law that the Surf School use of the Shop #7 was a permissible change in nonconforming use was clearly erroneous as it is not supported in the record. See Save Diamond Head Waters, LLC v. Hans Hedemann Surf Inc., S.Ct. No. 27804, July 13, 2009. With this ruling, the Surf School is effectively shut down.
The question before the Court, was "whether the Surf School's use of Shop # 7 of the Hotel's premises was a permissible change in nonconforming use (from hotel to office) under the LUO." In reaching it's holding, the Court opined the following:
Certain groups, including Save Diamond Head Waters, LLC (collectively, "SDHW"), challenged the use of Shop #7 for the Surf School. In 2004, the Director of planning for the City determined that the school operates in compliance with the regulations of the zoning ordinance for nonconformities, subject to certain conditions. SDHW appealed the Director's decision to the zoning board of appeals, which affirmed the Director's Ruling. SDHW appealed to the circuit court, which vacated the ZBA's decision "insofar as it allows the operation of a commercial surf school at [the Hotel]." The Surf School appealed to the ICA. The ICA reversed the circuit court's judgement, concluding that the Director had discretion to grant the impact-ameliorating conditions and did not abuse his discretion in finding that the Surf School's use of Shop # 7 constituted a valid change in nonconforming use of Shop # 7, because the "ruling was reasonably based on the evidence before the Director and constituted a reasonable application of the applicable zoning ordinance and the [planning department's] previous interpretation of that ordinance."
In 2009, the Hawaii Supreme Court accepted SDHW's Application for Writ of Certiorari. The Hawaii Supreme Court (1) vacated the ICA's Opinion and (2) affirmed the circuit court's amended final judgment on the grounds that the Director's mixed finding of fact and conclusion of law that the Surf School use of the Shop #7 was a permissible change in nonconforming use was clearly erroneous as it is not supported in the record. See Save Diamond Head Waters, LLC v. Hans Hedemann Surf Inc., S.Ct. No. 27804, July 13, 2009. With this ruling, the Surf School is effectively shut down.
The question before the Court, was "whether the Surf School's use of Shop # 7 of the Hotel's premises was a permissible change in nonconforming use (from hotel to office) under the LUO." In reaching it's holding, the Court opined the following:
The Director erred when he compared the Surf School's impact to that of "an accessory use of the hotel," because the Director could only weigh the Surf School's impact against a legally established prior nonconforming use. Here, the Surf School's use of Shop # 7 cannot be compared to "an accessory use of the Hotel" because the Surf School did not meet its burden to prove that there was a legally established prior nonconforming accessory use of Shop # 7. In other words, the Surf School did not establish (1) that there was a valid accessory use of Shop # 7 by the Hotel before the 1969 Comprehensive Zoning Code changed the Hotel's zoning from Hotel and Apartment District "L" to A-4 Apartment District; or (2) there was a valid accessory use of Shop # 7 before the LUO changed the Hotel's zoning from A-4 Apartment District to its current A-2 Medium Density Apartment District designation.This decision does not create new law for determining nonconforming uses under the City's land use ordinance. Instead, the case merely provides that the record did not support the Director's conclusion.
Wednesday, July 8, 2009
Slump in Timeshare Market May Pull Down Hotel/Resort Profits
Today's edition of the Wall Street Journal reports that:
Hawaii has seen its share of resort/hotel conversions to timeshares in the past decade. In today's economic climate this could mean more economic pain for Hawaii's hotels with occupancy rates at record lows.
Source: A. Troianovski & K. Hudson, "Hotels Sound the Alarm on Time Shares, Pullback by Major Developers Amid a Slump Will Reshape the Business," WSJ, July 8, 2009.
The hotel industry has been reeling for the past year amid a steep decline in business and leisure travel. Now it is moving away from one of its former profit centers: time shares.As the Journal puts it, "giant hotel companies aren't in danger, but the decline in the time-share business will be a drag on profits for years." This has led to "curtailing spending on new resort construction, cutting staffs by up to half and imposing tougher standards for the few buyers qualifying for loans."
Major time-share developers, led by Wyndham Worldwide Inc., Marriott International Inc., Starwood Hotels & Resorts Inc. and others, are scaling back their time-share business as investors in time-share loans demand higher interest rates, buyers become more scarce and resales of time shares put downward pressure on prices and demand for new units.
Hawaii has seen its share of resort/hotel conversions to timeshares in the past decade. In today's economic climate this could mean more economic pain for Hawaii's hotels with occupancy rates at record lows.
Source: A. Troianovski & K. Hudson, "Hotels Sound the Alarm on Time Shares, Pullback by Major Developers Amid a Slump Will Reshape the Business," WSJ, July 8, 2009.
Tuesday, July 7, 2009
Maui Developer Proposes 660 Affordable Homes for Maui Project
Developer Jesse Spencer through his venture MVI, LLC, is proposing a 1,100 unit residential project for Maalaea, Maui, Hawaii. According to the project's June 2009 EIS Preparation Notice filed with the Office of Environmental Quality Control, the project is called the Ohana Kai Village Affordable Housing Project. It will include 440 market priced residential units, 660 affordable residential units, 7 acres of commercial space, and 16 acres of public space.
The project will take advantage of the state's 201H program, which allows qualifying projects to be exempt from "all statutes, ordinances, charter provisions, and rules of any government agency relating to zoning and construction standards for subdivisions, development, and improvement of land and the construction, improvement, and sale of dwelling units." See HRS Sec. 201H-41. In particular, the project will be seeking an exemption through the 201H process from a community plan amendment and zone change (both existing land use entitlements are inconsistent with the proposed project, particularly the commercial uses). However, 201H was adopted by the legislature to reduce the cost of developing affordable housing to encourage the private sector to invest in the affordable housing market.
Other notable comments in the EIS Publication Notice include the observed presence of foraging Nene geese on the site and 3 archaeologically significant resources. The project traffic will be fed from the Honoapiilani Highway. Water will be provided from a private well and waste water treatment will be processed onsite. A majority of the site has been designated as Prime Agricultural land under ALISH. Mitigation is discussed in the EIS Publication Notice.
The EIS Publication Notice was posted in The Environmental Notice on June 23, 2009 and is within the 30-day public comment period.
The project will take advantage of the state's 201H program, which allows qualifying projects to be exempt from "all statutes, ordinances, charter provisions, and rules of any government agency relating to zoning and construction standards for subdivisions, development, and improvement of land and the construction, improvement, and sale of dwelling units." See HRS Sec. 201H-41. In particular, the project will be seeking an exemption through the 201H process from a community plan amendment and zone change (both existing land use entitlements are inconsistent with the proposed project, particularly the commercial uses). However, 201H was adopted by the legislature to reduce the cost of developing affordable housing to encourage the private sector to invest in the affordable housing market.
Other notable comments in the EIS Publication Notice include the observed presence of foraging Nene geese on the site and 3 archaeologically significant resources. The project traffic will be fed from the Honoapiilani Highway. Water will be provided from a private well and waste water treatment will be processed onsite. A majority of the site has been designated as Prime Agricultural land under ALISH. Mitigation is discussed in the EIS Publication Notice.
The EIS Publication Notice was posted in The Environmental Notice on June 23, 2009 and is within the 30-day public comment period.
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