2015 Hawaii Congress of Planning Officials AICP - Law

Jesse K. Souki, Esq.Of Counsel, Imanaka Asato LLLC

October 15, 2015

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Statewide Land Use Framework

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Public Trust

• Article XI, Section 1. For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii's natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

All public natural resources are held in trust by the State for the benefit of the people.

Statewide Planning ActHRS Chapter 226

Part I: Overall Theme, Goals, Objectives and Policies

Population

Economy

Physical environment

Facility systems

Socio-cultural advancement

Part III: Priority Guidelines

Economic

Population GrowthCrime and criminal

justice

Affordable housing

EducationSustainability

Climate Change Adaptation

Part II: Statewide planning system

Functional plans• Define and implement Parts

I and II• Identify priority issues• Implementing actions

County general plans• Zoning• SMA Permit• District Boundary

Amendments

State programs• CIP• CZM• LUC• BLNR

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State Land Use Classifications

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State Land Use LawHRS Chapter 205

Purpose• “preserve, protect and encourage the development of the

lands in the State for those uses to which they are best suited for the public welfare[.]” See L. 1961, c 187, § 1.

Implementation Mechanisms• 5-Year Boundary Review• District Boundary Amendments• Important Agricultural Lands Designation• State Special Use Permits

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State Land Use Law5-Year Boundary Review, HRS §205-18

Purpose• Review of the classification and districting of all lands in

the State.

Implementation Mechanisms• Focus efforts on reviewing Hawaii state plan and

county general and community/development plans• Where does it make sense to expand or contract

districts?• Long-range, statewide land use planning effort.

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State Land Use LawDBAs, HRS §205-4.5

Purpose• Allow reclassification of lands based on criteria.

Implementation Mechanisms• Conformance with State Plan• Preservation/maintenance of important natural systems

or habitats• Maintenance of valued natural resources• Maintenance of other natural resources relevant to

Hawaii's economy

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State Land Use LawIAL, HRS §§205-41, et seq.

Purpose• Identify and plan for the maintenance of a strategic agricultural land resource

base• Support a diversity of agricultural activities and opportunities• Expand agricultural income and job opportunities• Increase agricultural self-sufficiency for current and future generations

Implementation Mechanisms• LUC Declaratory Order• Voluntary Petitions• County Mapping• State Mapping• Various criteria

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State Land Use LawSpecial Permits, HRS §205-6

Purpose• Authorizes counties to allow “unusual and

reasonable uses” not allowed in the Agricultural and Rural Districts.

Implementation Mechanisms• Counties approve; subject to LUC approval >15 acs• Conditions of approval to promote the

effectiveness and objectives of HRS chapter 205

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Coastal Zone Management ActHRS Chapter 205A

Purpose• “provide for the effective management, beneficial use,

protection, and development of the coastal zone.” See L. 1977, c 188, § 1.

Implementing Mechanisms• Special Management Area Permits• Federal Consistency• Comprehensive Planning and Coordination• Ocean Resources Management Plan

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Conservation District

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Conservation District Use PermitHRS Chapter 183C

Purpose• “Conserve, protect, and preserve the important natural

resources of the State through appropriate management and use to promote their long-term sustainability and the public health, safety and welfare.” See L. 1994, c 270, pt of §1.

Implementing Mechanisms• Defining Zones within the District• Determining Allowed Uses• Permits and Site Plan Approvals – No Permit Required, Site Plan

Approval, Director’s Approval Required, BLNR Approval Required

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What’s Allowed in the Conservation District?

Protective Subzone• Fishponds• Agriculture and a single family

residence on Kuleana lands• Public infrastructure• Power generation from

renewable resources

Limited Subzone• Agriculture• Single Family Residence• Educational/recreational

wilderness camps

Resource Subzone• Aquaculture• Astronomy Facilities• Commercial forestry• Mining and extraction

General Subzone• Open space and accessory structures—

no golf courses• Uses consistent with General Subzone,

e.g., farming, flower gardening, nurseries or orchards, grazing, and facilities accessory to these uses

Special Subzone

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Proposals Must be Consistent With:

• Purpose of the conservation district & subzone• Coastal Zone Management Act• Use will not cause substantial adverse impact to

existing natural resources within the surrounding area, community, or region

• Compatibility with surrounding area• Preservation or improvement of physical and

environmental aspects of the land• Subdivision will not increase intensity of uses• Public health, safety, and welfare

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HEPA RequirementsHAR § 11-200-12, Significance criteria

• “Significant effect” or “significant impact” if proposed use:– Involves an irrevocable commitment to loss or destruction of any natural or cultural resource;– Curtails the range of beneficial uses of the environment;– Conflicts with the state's long-term environmental policies or goals and guidelines as expressed in chapter

344, HRS, and any revisions thereof and amendments thereto, court decisions, or executive orders;– Substantially affects the economic welfare, social welfare, and cultural practices of the community or State;– Substantially affects public health;– Involves substantial secondary impacts, such as population changes or effects on public facilities;– Involves a substantial degradation of environmental quality;– Is individually limited but cumulatively has considerable effect upon the environment or involves a

commitment for larger actions;– Substantially affects a rare, threatened, or endangered species, or its habitat;– Detrimentally affects air or water quality or ambient noise levels;– Affects or is likely to suffer damage by being located in an environmentally sensitive area such as a flood

plain, tsunami zone, beach, erosion-prone area, geologically hazardous land, estuary, fresh water, or coastal waters;

– Substantially affects scenic vistas and viewplanes identified in county or state plans or studies; or,– Requires substantial energy consumption.

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Recent CDUP Related Cases

• Kilakila `O Haleakala v. Board of Land and Natural Resources– Advanced Technology Solar Telescope (ATST)– BLNR permit issued 2010 and again in 2012– Heard on April 2, 2015

• Mauna Kea Anaina Hou v. Board of Land and Natural Resources– Thirty Meter Telescope (TMT)– BLNR permit issued 2013– Haw. Sct. Heard on August 27, 2015

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Land Use FrameworkCounty Implementation

• General Plans• Zoning• Subdivision• Permitting• SMA• DBAs and Special Permits under 15 acres

Source: The General Plan (1992 edition, amended in 2002).

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Recent Variance CaseSurfrider Foundation v. Zoning Bd. of Appeals

• Development of the 8-story Diamond Head Tower in Waikiki

• Question before the Court:– “Whether a variance granted for a proposed 26–story

hotel and residential tower that permitted a 74 percent encroachment into the coastal height setback along the Waikiki shoreline was properly issued.”

• 100 foot setback from the certified shoreline• Transitional height setback

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Variance CriteriaHonolulu City Charter § 6–1517

• Applicant must establish unnecessary hardship:– The applicant would be deprived of the reasonable use

of such land or building if the provisions of the zoning code were strictly applicable;

– The request of the applicant is due to unique circumstances and not the general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into question; and

– The request, if approved, will not alter the essential character of the neighborhood nor be contrary to the intent and purpose of the zoning ordinance.

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Applicant Arguments

• Deprived Reasonable Use– Strict application would reduce the buildable portion of the property to

approximately 33% of the whole– 1965 Beach Agreement

• Unique Circumstances– Its proposed project avoids the historic Banyan Wing– Parcel shape and dimensions– 1965 Beach Agreement

• Essential Character of Neighborhood/LUO Intent– Waikiki densely developed, urbanized area, filled with large hotels,

condominiums, and mixed-use projects – Other projects encroach– Consistent with WSD--rejuvenation and revitalization, people oriented landscape– Beach Maintenance Project will mitigate encroachment

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“Reasonable Use”

• Not necessarily the use most desired by the property owner

• Inability to make reasonable use of its land or building without the variance

• Economic viability must be supported with financial data in the record – Options included renovation and rebuilding the conforming

structure• PD-R does not apply to coastal height setbacks• Setback must be measured from current certified shoreline

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“Unique Circumstances”

• Narrow lot does not alone justify the variance• Not legal requirements that prescribe how a

parcel may be used and developed • Not setbacks, shoreline, 1965 Beach

Agreement, or the Beach Maintenance Project• Record did not show how narrowness of the lot

created unique circumstances

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Essential Character of the Neighborhood and Intent and Purpose of Zoning Ordinance

• The WSD was adopted in response “to the rapid development of the 1960s and 1970s, and the changes produced by that development”

• Nonconforming uses and structures should not serve as the basis for further nonconformance

• Director should have evaluate whether 74 percent encroachment into the Coastal Height Setback was contrary to the intent and purpose of the WSD and the Coastal Height Setback not whether the Project was consistent with three of the fourteen WSD “objectives.”

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Transit Oriented Development

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TOD Zoning Maps

• Zone Change Proposal for Waipahu and West Loch Station Areas– City Council approved the Waipahu Neighborhood

TOD Plan on April 16, 2014

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TOD Special District

• TOD Special District (SD)– Applies to entire rail alignment within 1/4- to 1/2-

mile of the rail stations– Projects less than 1 acre and compliant with SD

standards do not need a SD permit– Modifying SD standards require a permit, e.g.,

height/density bonuses– PD-T Permit allows the most flexibility

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References• Transit-Oriented Development Proposed Special District Regulations, Sept. 14,

2015, http://www.honoluludpp.org/Portals/0/pdfs/planning/ProjectInfo/PC_SD_Submittal.pdf.

• Transit-Oriented Development Proposed Changes in Zoning and Height Limits, Sept. 14, 2015, http://www.honoluludpp.org/Portals/0/pdfs/planning/ProjectInfo/PC_ZC_Submittal.pdf.

• Land Use Cases to Watch: Hawaii Supreme Court, April 22, 2015, http://www.hilanduselaw.com/2015/04/land-use-cases-to-watch-hawaii-supreme.html.

• Developers Have an Option for Transit-Oriented Development (TOD) with Interim Permit, Feb. 12, 2015, http://www.hilanduselaw.com/2015/02/developers-have-option-for-transit.html.

• Transit-Oriented Development Resources, Dec. 8, 2014, http://www.hilanduselaw.com/2014/12/transit-oriented-development-resources.html.