Green Building Legal Issues

Green Building Legal Issues on the Horizon is a free webinar that discusses legal issues and regulatory challenges caused by green building requirements.

The presentation discusses a Marlyland case where Shaw Development sued a building developer who failed to achieve LEED Silver certification in a design-bid-build contract for a condominium development. The presentation also discusses green building mandates, the problem with obtaining surety bonds for guaranteeing green building compliance, cases where the insurance industry refused to insure "green roofs," and green defects, a subset of construction defects.

In Hawaii, counties are considering green mandates for private projects and the State land use commission has mandated LEED compliance as a condition of granting a district boundary amendment.

Superferry Sightings

Today's Passenger Transit Express newsletter by the American Public Transportation Association (APTA) reports that the Alakai recently joined its sister ferry the Huakai to carry relief supplies to Haiti.

The Alakai and Huakai catamarans formerly provided cargo and passenger ferry service between Oahu and Maui. The ferries are currently berthed in Norfolk, Virginia after Hawaii Superferry declared bankruptcy and went out of business. The primary contributing factor to Hawaii Superferry's downfall was its failure to comply with Hawaii's environmental laws.

For more on the Hawaii Superferry, see the Hawaii Superferry archive.

University of Hawaii Relases Hawaii 2050 Sustainability Plan UPDATE Report

The Hawaii 2050 Sustainability Plan UPDATE Report was unveiled this month by the University of Hawaii's College of Social Sciences Public Policy Center at the Hawaii State Capitol. In short, the report makes the following recommendations:

• Incorporate the Plan definition and goals of sustainability as a new section into the Hawaii State Planning Act.
• Develop and implement policies based on common themes voiced by citizens across the counties in the cross sector dialogs.
• Support the continuing public-private collaboration, community discussions, and efforts on sustainability initiatives.
• Adopt measures of accountability, including data and data sources, indicators and benchmarks.
• Develop a sustainability coordinating entity to carry forward the H2050 Plan; i.e., creating a sustainability council as a continuing government organization (previously introduced by the legislature in 2008).

In 2008, the Hawaii State Legislature passed legislation (Act 225) that required the Policy Center to review the Hawaii 2050 Sustainability Plan prepared in 2007.

The governor allowed the bill to pass in protest without her signature. Her reasons for not supporting the bill were because "[t]wo years and $1.7 million dollars of State funds" were previously spent by the Legislature on the Hawaii 2050 Sustainability Plan and the "bill continues the discussion, rather than implements actions that are needed to transform our economy[.]"

For related articles see Planning.

Public Workshop to Discuss the Future of Kakaako Makai

The Hawaii Community Development Authority ("HCDA") will be holding a public workshop to discuss the future of Kakaako Makai from January 30 through February 1 at the John A. Burns School of Medicine.

The HCDA and the Kaka'ako Makai Community Planning Advisory Council have been working on revising the Kaka'ako Makai Master Plan for two years. The Master Plan is the basis for development and land use controls for hundreds of acres of private and public property within the Kaka'ako Makai boundaries.

The current Makai Area Plan and Makai Area Rules can be found on the HCDA's website.

Final Report to the Legislature on Hawaii's EIS Law

The Report to the Legislature on Hawaii's Environmental Review System, dated January 1, 2010, was posted here.

As discussed in Joint Legislative Committee Will Consider Changes to Hawaii's EIS Law, the report was prepared by the University of Hawaii at the request of the legislature in 2008. The authors will present its findings to the legislature on Friday, January 15, 2010.

[Update: Here is a copy of the presentation shown to the legislature by the authors of the UH EIS Study. Also, here is a Summary of the Environmental Council’s Immediate Needs and Future Goals, submitted to the legislature by Gail Grabowsky, Environmental Council Chair.

To keep up with legislative happenings related to environmental and land use laws, see Legislative Updates. For more on environmental issues, see Environmental Law.

Joint Legislative Committee Will Consider Changes to Hawaii's EIS Law

Hawaii's Senate Committee on Energy and Environment and the House Committee on Energy and Environmental Protection are holding an informational briefing to consider proposed revisions to Hawaii's environmental laws.

The meeting will be held on Friday, January 15, 2010, starting at 1:00 p.m. in Conference Room 329 at the State Capitol. The agenda is posted here.

The recommendations are based on a recent report prepared by the University of Hawaii in accordance with Act 1 (2008). Pursuant to Act 1, the purpose of the report is to:

1. Examine the effectiveness of the current environmental review system created by chapters 341, 343, and 344, Hawaii Revised Statutes;
2. Assess the unique environmental, economic, social, and cultural issues in Hawaii that should be incorporated into an environmental review system;
3. Address larger concerns and interests related to sustainable development, global environmental change, and disaster-risk reduction; and
4. Develop a strategy, including legislative recommendations, for modernizing Hawaii's environmental review system so that it meets international and national best-practices standards.

The final report has not been made publicly available; however, a draft entitled, "UH EIS Study Draft Recommendations," is available here. [UPDATE: See Final Report to the Legislature on Hawaii's EIS Law.]

In addition, Dr. Gail Grabowsky, chairperson of the Environmental Council, will report on the state of the Environmental Council, which has been in a state of disarray.

To keep up with legislative happenings related to environmental and land use laws, see Legislative Updates. For more on environmental issues, see Environmental Law.

Hawaii State Legislature Posts 2010 Legislative Timetable

The Hawaii State Legislature posted its 2010 Legislative Timetable at http://www.capitol.hawaii.gov/site1/info/time/time.asp.

Some important dates include:

• Jan 20, Opening Day and Non-Admin Bill Package Cutoff
• Feb 26, First Decking (Bills)
• Mar 4, First Crossover (Bills)
• Mar 8, Budget Decking
• Mar 10, Budget Crossover & Substantive Reso Cutoff
• Apr 1, Second Decking
• Apr 8, Second Crossover (Bills); Disagree
• Apr 22, Final Decking (Non-Fiscal Bills)
• Apr 23, Final Decking (Fiscal Bills)
• Apr 29, Adjournment Sine Die

Special session is not included in the 2010 Legislative Timetable, but one is almost certain considering the State's economic crisis.

For more legislative updates, see Legislative Updates.  For help understanding the referenced terms, see Glossary of Legislative Terms.

Hawaii Appellate Court Holds that Legislative Reversal of Over 100 Years of Judicial Precedent Does Not Require the State to Compensate Oceanside Property Owners

The Hawaii Intermediate Court of Appeals ("ICA") issued an opinion in Maunalua Beach Ohana v. Hawaii on December 30, 2009.

In the ICA's own words:

The dispositive issue in this case is whether the circuit court correctly held that Act 73 "effected an uncompensated taking of, and injury to, (a) littoral owners' accreted land, and (b) littoral owners' right to ownership of future accreted land, insofar as Act 73 declared accreted land to be 'public land' and prohibited littoral owners from registering existing and future accretion [.]"

Before answering that question, the ICA reviewed various judicial precedent regarding littoral ownership of property, which it summarized as follows:

[U]nder Hawai'i Supreme Court precedent, (1) the "highest reach of the highest wash of the waves" delineates the boundary between private oceanfront property and public property for ownership purposes, as well as the baseline for measuring the shoreline setback line and determining the shoreline area, the so-called no-building zone, notwithstanding that the deed for the oceanfront property describes the property by "certain distances and azimuths" that put the seaward boundary of the property below the high-water mark; (2) land added to oceanfront property through avulsive lava extension belongs to the State; and (3) land added to oceanfront property through accretion belongs to the oceanfront property owner.

Citations omitted.

The ICA answered the questions before it as follows:

• Plaintiffs do not have vested property rights in future accretions. The ICA opined that common law can be changed by State legislative acts so long as such acts do not violate the constitution. In response to Plaintiffs' claim that Act 73 violated article I, section 20 of the Hawai'i State Constitution (i.e., "Private property shall not be taken or damaged for public use without just compensation"), the court opined that "any claims that Plaintiffs may have to future accretions are purely speculative, and other courts have held that a riparian owner has no vested right to future accretions." Consequently, "Plaintiffs have no vested right to future accretions that may never materialize and, therefore, Act 73 did not effectuate a taking of future accretions without just compensation."


• There is a taking of accreted land existing prior to the passage of Act 73. The ICA opined that "Act 73 permanently divested a littoral owner of his or her ownership rights to any existing accretions to oceanfront property that were unregistered or unrecorded as of the effective date of Act 73 or for which no application for registration or petition to quiet title was pending and, therefore, Act 73 effectuated a taking of such accretions." Emphasis added. However, the ICA observed, in this case "[n]otably absent from Plaintiffs' complaint is any allegation that Plaintiffs have ownership rights in accreted lands that existed at the time Act 73 was enacted."

Based on these conclusions, the ICA held that

(1) Plaintiffs and the class they represented had no vested property rights to future accretions to their oceanfront land and, therefore, Act 73 did not effect an uncompensated taking of future accretions; and (2) Act 73 effectuated a permanent taking of littoral owners' ownership rights to existing accretions to the owners' oceanfront properties that had not been registered or recorded or made the subject of a then-pending quiet-title lawsuit or petition to register the accretions.

Having upheld Act 73, littoral landowners may find themselves with larger beaches adjacent to their property that is owned by the State of Hawaii and open to the public. More than what is required by Hawaii's public trust doctrine, whereby the State of Hawaii holds all shoreline property in trust for the benefit of the public as delineated by 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 Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006).

The parties may file a writ of certiorari with the Hawaii Supreme Court for its further consideration.

For more on Shoreline issues see Shoreline.