The third Wednesday in January (i.e., January 20, 2010) draws near. On that day, the Hawaii State Legislature will convene its regular session at 10:00 o'clock a.m. Aside from enjoying a new salary, some say the highest pay in the country for a part time legislature, legislators will be busy shoveling bills into the legislative trough and then waiting to see what floats to the top with only their rhetoric and finger pointing to stir the slurry.
The purse is light this year, so legislators might inflict the least amount of damage to land use and environmental laws this session. However, you may want to keep an eye out for the slippery bill that makes it through and either inhibits business or adds one more tax, fee, or regulation on the back of our entrepreneurs and small businesses that has nothing to do with encouraging economic growth or environmental protection.
You can keep an eye on things at the legislature's updated website for the 2010 Regular Session, which includes bill and resolution status, text, and committee reports at http://www.capitol.hawaii.gov/session2010. The keepers of the legislature's website have done a great job making the people's government transparent by adding new functions and tweaks that allow easy, remote access to legislative information.
Hawaii Land Use Law & Policy will also be tracking and reporting on select measures.
Tuesday, December 29, 2009
Monday, December 28, 2009
HSCT Posts Oral Argument from Supplemental EIS Case Involving Turtle Bay Resort Expansion
On May 22, 2009, this blog summarized the Hawaii Intermediate Court of Appeal's ("ICA") decision (upholding the trial court's decision) that the Turtle Bay Resort subdivision application did not require a separate supplemental EIS. See Appellate Court Issues Opinion in Turtle Bay EIS Case. In this case, an EIS was prepared in 1985 for the Turtle Bay expansion project and preliminary subdivision approval was subsequently granted in 2006.
The Plaintiff's appealed the ICA decision and argued that the Hawaii Supreme Court should adopt ICA Judge Nakamura's dissent, wherein he opined that the relevant rules require the completion of a supplemental EIS “when significant changes to the anticipated environmental impacts of a proposed action become apparent such that ‘an essentially different action’ is being proposed.” Judge Nakamura's dissent made a broader interpretation of the applicable state regulations which require a supplemental EIS only when there is a "change in a proposed action," which would include actions that have "changed substantively in size, scope, intensity, use, location or timing[.]" See HAR §11-200-26. However, under the plain language of HAR §11-200-26, the ICA determined that the proposed Turtle Bay expansion project assessed in 1985 did not change; therefore, a supplemental EIS was not required in 2006.
The Hawaii Supreme Court heard arguments on December 17, 2009, which have been posted in its entirety in its Recordings Archive. The court's opinion on whether it should follow the trial court and ICA or the dissenting opinion of Judge Nakamura is forthcoming.
For more on environmental laws that impact Hawaii, see Environmental Law.
The Plaintiff's appealed the ICA decision and argued that the Hawaii Supreme Court should adopt ICA Judge Nakamura's dissent, wherein he opined that the relevant rules require the completion of a supplemental EIS “when significant changes to the anticipated environmental impacts of a proposed action become apparent such that ‘an essentially different action’ is being proposed.” Judge Nakamura's dissent made a broader interpretation of the applicable state regulations which require a supplemental EIS only when there is a "change in a proposed action," which would include actions that have "changed substantively in size, scope, intensity, use, location or timing[.]" See HAR §11-200-26. However, under the plain language of HAR §11-200-26, the ICA determined that the proposed Turtle Bay expansion project assessed in 1985 did not change; therefore, a supplemental EIS was not required in 2006.
The Hawaii Supreme Court heard arguments on December 17, 2009, which have been posted in its entirety in its Recordings Archive. The court's opinion on whether it should follow the trial court and ICA or the dissenting opinion of Judge Nakamura is forthcoming.
For more on environmental laws that impact Hawaii, see Environmental Law.
Tuesday, December 22, 2009
Monday, December 21, 2009
No More "Haberdasheries" in the Maui County Zoning Code
Maui County planning director, Jeff Hunt, is embarking on an ambitious plan to streamline Maui County's Zoning Code, which is codified at MCC Chapter 19.
In an open letter to the community, Hunt lists the various streamlining efforts his department has accomplished, including creating additional EIS exemptions, SMA blanket exemptions for certain small projects, and a dual permitting system that prevents over-the-counter permits from being tied up with more complex permits. A more recent part of this effort is revising Maui's Zoning Code, which has been the subject of ire from the development community for decades. Some describe the code as being draconian and outdated.
In pushing these streamlining measures through, the first step is review, public hearings, and recommendations by the planning commissions (Maui, Molokai, and Lanai). Hunt's June 11, 2009 letter to the Commissions outlines some of those recommended changes. Changes in the June 11, 2009 proposal primarily focuses on adding provisions to the residential district to allow renewable energy systems, home based businesses, and lot coverage requirements.
The Maui Planning Commission recently heard several streamling proposals at its December 8, 2009 meeting. Hunt presented several proposed bills that would update and simplify the County’s business district. According to the agenda, "the updates provide for improved useability, adding mixed uses to commercial districts, and including transient vacation rental, small scale energy facilities, and residential uses." In particular, the proposed bills will amend the Country Town Business Districts, B-1 Neighborhood District, B-2 Community Business District, B-3 Central Business District, and B-R Commercial District.
Once through the Planning Commissions, these measures must be considered by the Council's Planning Committee, be open to public hearings, and finally voted on in Council.
In an open letter to the community, Hunt lists the various streamlining efforts his department has accomplished, including creating additional EIS exemptions, SMA blanket exemptions for certain small projects, and a dual permitting system that prevents over-the-counter permits from being tied up with more complex permits. A more recent part of this effort is revising Maui's Zoning Code, which has been the subject of ire from the development community for decades. Some describe the code as being draconian and outdated.
In pushing these streamlining measures through, the first step is review, public hearings, and recommendations by the planning commissions (Maui, Molokai, and Lanai). Hunt's June 11, 2009 letter to the Commissions outlines some of those recommended changes. Changes in the June 11, 2009 proposal primarily focuses on adding provisions to the residential district to allow renewable energy systems, home based businesses, and lot coverage requirements.
The Maui Planning Commission recently heard several streamling proposals at its December 8, 2009 meeting. Hunt presented several proposed bills that would update and simplify the County’s business district. According to the agenda, "the updates provide for improved useability, adding mixed uses to commercial districts, and including transient vacation rental, small scale energy facilities, and residential uses." In particular, the proposed bills will amend the Country Town Business Districts, B-1 Neighborhood District, B-2 Community Business District, B-3 Central Business District, and B-R Commercial District.
Once through the Planning Commissions, these measures must be considered by the Council's Planning Committee, be open to public hearings, and finally voted on in Council.
Wednesday, December 16, 2009
Hawaii Appellate Court Holds that Native Hawaiian Burials Uncovered by Developer was "Inadvertent"
Today, the Hawaii Intermediate Court of Appeals ("ICA") issued an opinion in Hui Malama v. Wal-Mart, ICA No. 28477, Dec. 16, 2009. The decision clarifies when State Historic Preservation Division ("SHPD") review is required under Hawaii's Historic Preservation Act, HRS Chapter 6E.
The issue before the court was the correct interpretation of HRS § 6E-42, which provides in pertinent part that "[b]efore any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic historic property . . . or a burial site, the agency or office shall advise the department [SHPD] and prior to any approval allow the department [SHPD] an opportunity for review and comment on the effect of the proposed project on historic property . . . or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places." Emphasis added.
In this case, the "agency" was the City and County of Honolulu's Department of Planning and Permitting ("DPP"), who issued permits to Wal-Mart for its new store in Honolulu. According to the ICA, the site for the Wal-Mart store was the subject of multiple environmental, archaeological, and other assessments of the property for either the Wal-Mart Project or other proposed developments on or near the property. On at least two occasions, the SHPD informed owners of the property that construction at the site would have "no effect" on historic properties. It must have been a surprise to Wal-Mart when it discovered forty-two sets of human remains while grading and clearing the property after DPP issued grubbing and grading permits.
Since the burials were not previouly discovered, they were treated as an "inadvertent discovery" under HRS § 6E-43.6, which requires, that all activity that could affect the burials cease until SHPD determines that the burials should be removed or preserved in place after consultation with the Oahu Island Burial Council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations. In this case, SHPD, following the unanimous recommendation of the O’ahu Island Burial Council, directed that the remains be relocated and reburied on the property.
Plaintiff Hui Malama sued, alleging that DPP should have obtained the comments of SHPD before issuing grubbing, grading, and other permits. The ICA disagreed and affirmed the lower court's decision as follows:
The court also declined "Plaintiffs’ invitation to enlarge the applicability and obligations of HRS § 6E-42 beyond the express terms of the statute." The court based its opinion on the fact that the "legislature has enacted other statutes to protect native Hawaiian burial sites," in particular, HRS § 6E-43.6 that sets forth procedures that must be followed in the event of inadvertent discovery of burial sites, as discussed supra.
For previous blog entires on this topic, see Historic Preservation.
The issue before the court was the correct interpretation of HRS § 6E-42, which provides in pertinent part that "[b]efore any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic historic property . . . or a burial site, the agency or office shall advise the department [SHPD] and prior to any approval allow the department [SHPD] an opportunity for review and comment on the effect of the proposed project on historic property . . . or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places." Emphasis added.
In this case, the "agency" was the City and County of Honolulu's Department of Planning and Permitting ("DPP"), who issued permits to Wal-Mart for its new store in Honolulu. According to the ICA, the site for the Wal-Mart store was the subject of multiple environmental, archaeological, and other assessments of the property for either the Wal-Mart Project or other proposed developments on or near the property. On at least two occasions, the SHPD informed owners of the property that construction at the site would have "no effect" on historic properties. It must have been a surprise to Wal-Mart when it discovered forty-two sets of human remains while grading and clearing the property after DPP issued grubbing and grading permits.
Since the burials were not previouly discovered, they were treated as an "inadvertent discovery" under HRS § 6E-43.6, which requires, that all activity that could affect the burials cease until SHPD determines that the burials should be removed or preserved in place after consultation with the Oahu Island Burial Council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations. In this case, SHPD, following the unanimous recommendation of the O’ahu Island Burial Council, directed that the remains be relocated and reburied on the property.
Plaintiff Hui Malama sued, alleging that DPP should have obtained the comments of SHPD before issuing grubbing, grading, and other permits. The ICA disagreed and affirmed the lower court's decision as follows:
The Circuit Court of the First Circuit’ (circuit court) held that the statute requires a permitting agency to seek SHPD’s review and comment only when it “knows, or has reason to suspect, that the project may impact a burial or other historic site[.]” As there was “no evidence that the City Defendants knew of or should have known” that a burial site existed on the property, the circuit court ruled that the City Defendants did not violate the statute.Emphasis added. With this holding, the court clarifies what is meant by "may affect historic historic property . . . or a burial site." In this case, "there was no factual basis to know or reasonably believe that the Wal-Mart Project 'may affect' a burial site." The court also disagreed with Plaintiffs' suggestion that a more rigorous independent analysis by DPP would have uncovered the burial site's existence.
The court also declined "Plaintiffs’ invitation to enlarge the applicability and obligations of HRS § 6E-42 beyond the express terms of the statute." The court based its opinion on the fact that the "legislature has enacted other statutes to protect native Hawaiian burial sites," in particular, HRS § 6E-43.6 that sets forth procedures that must be followed in the event of inadvertent discovery of burial sites, as discussed supra.
For previous blog entires on this topic, see Historic Preservation.
Wednesday, December 2, 2009
SCOTUS Hears Oral Arguments in Florida Shoreline Case
In October, Hawaii Land Use Law previewed Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, wherein the US Supreme Court will consider placing constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines. The case was heard today and audio of the oral arguments will be posted on the Oyez website.
This case is similar to Maunalua Beach Ohana v. Hawaii, which was recenlty heard by Hawaii's Intermediate Court of Appeals as discussed in Oral Argument in Shoreline Ownership Case Posted. In Maunalua, similar to Stop the Beach Renourishment, littoral landowners challenge state laws which take away their common law right to gain land by accretion. Among other things, both cases are based on regulatory takings for the state's failure to compensate property owners for taking private property through regulation.
For more on shoreline issue, see Shoreline.
This case is similar to Maunalua Beach Ohana v. Hawaii, which was recenlty heard by Hawaii's Intermediate Court of Appeals as discussed in Oral Argument in Shoreline Ownership Case Posted. In Maunalua, similar to Stop the Beach Renourishment, littoral landowners challenge state laws which take away their common law right to gain land by accretion. Among other things, both cases are based on regulatory takings for the state's failure to compensate property owners for taking private property through regulation.
For more on shoreline issue, see Shoreline.
Tuesday, December 1, 2009
Oral Argument in Shoreline Ownership Case Posted
In On Appeal, Hawaii Land Use Law previewed Maunalua Beach Ohana v. Hawaii where a shoreline property owner challenged Act 73 (2003).
Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands." The Plaintiff, landowners, filed an inverse condemnation lawsuit challenging the state's regulatory taking of private property without compensation under the 5th Amendment of the U.S. Constitution.
In Hawaii, any property that is below the certified shoreline is public lands. The certified shoreline is determined by the state, which considers the "upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." See HRS § 205A-1, Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006). Consequently, as shore area is added to a property through accretion, the shoreline moves toward the ocean creating additional land above the shoreline. Prior to Act 73, a littoral property owner could claim this land if it could show, among other things, that the adjoining land formed by accretion was permanent.
The circuit court granted Plaintiffs' motion for partial summary judgment on Plaintiffs' claim for injunctive relief to bar enforcement of Act 73 "unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings." The State appealed. The Intermediate Court of Appeals heard argument on November 10, 2009, which is posted here. An opinion from the ICA should be published soon.
For more on shoreline issues, see Shoreline.
Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands." The Plaintiff, landowners, filed an inverse condemnation lawsuit challenging the state's regulatory taking of private property without compensation under the 5th Amendment of the U.S. Constitution.
In Hawaii, any property that is below the certified shoreline is public lands. The certified shoreline is determined by the state, which considers the "upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves." See HRS § 205A-1, Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006). Consequently, as shore area is added to a property through accretion, the shoreline moves toward the ocean creating additional land above the shoreline. Prior to Act 73, a littoral property owner could claim this land if it could show, among other things, that the adjoining land formed by accretion was permanent.
The circuit court granted Plaintiffs' motion for partial summary judgment on Plaintiffs' claim for injunctive relief to bar enforcement of Act 73 "unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings." The State appealed. The Intermediate Court of Appeals heard argument on November 10, 2009, which is posted here. An opinion from the ICA should be published soon.
For more on shoreline issues, see Shoreline.
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