LAND USE PLANNING AND PRIORITIES IN HAWAI'I

David L. Callies

The use of land in Hawai'i is intensely regulated. A recent partial list- ine of maior ~ e r m i t s reauired for residential and resort develooment runs to

complex

THE LAND REGULATORY SYSTEM IN BRIEF

Land use controls in Hawai'i are exercised at two levels of government: State and county. Each level controls private land within its iurisdiction, and the countv doesnot control State-owned lands or have iurisdktion over cer- tain otheGlands. Moreover, neither the State nor the cbunty has jurisdic- tion over Federal lands.

The State The State of Hawai'i controls land by three principal means: the Land

Use Law. the Hawai'i Environmental Impact Statement Law. and the Coastal Zone ~ a n a ~ e m e n t Act.

The Land Use Law provides for a Land Use Commission, which initially divided the entire land area of the State into four districts: Aoricultural. Conservation, Rural, and Urban. Significant private land d e ~ & ~ m e n t is permitted only in the Urban district. Once land is classified as Urban, Hawai'i's fouf counties assume control of the land regulator+ process. How-

until the &nd u s e ~hmmission rechssified the land to Urban. In addition to classifying land, the Land Use Commission is primarily

resoonsihle for renulatinb use in the Aericultural District (about-47% of the . ~ -~ " ~~

State's land a i e a ) r ~ o s t of the remainyng land (46%) is chssified Conserva- tion. the use of which is controlled by the governing Board of the Department of L&d and Natural Resources (thc~and-Board). '~ands with a Conservation

Land Use Planning ond FWoritiesI Collies 164

District classification include national and state parks, lands with a slopc of 200 or more, lands in ex~sting forestry and watcy reserves, and marine waters and offshore irlnndr. In realttv. onlv lands withm the Protective P' Subzone of the Conservation District aie ordtected for "conservation" reasons. Both - . . . . . - ~ ~ ~

the Land Cse commission and t h e ~ ~ a n d ~ o a r d must conform their land use regulalorv activities to the Hawai'i State Plan (Act 100). hut the Plan's pr6visio~k are so general and ils goal? so diverse that determin~ng conform- ance ir nearly im os5ible 6 . . The Hawaii nwronmental Impact Statement l a w rcquires an Environ- mental Assessment and. deoendine'uoon the contents of t6is document an - .~ &:&onmental Impact ~taiement for developments in the State ~ o n s e ~ a - tion District, thc C.>a.ital Zone, county hictoric distrwts, and Waikiki. Iluw- ever. environmental assessments and environmental imoact statements. filed with the Governor. are information only" and if the prdcedurd standa~ds oirhc Hawail Environmentd Impact Statement Law arc s;ltisiied, a land- owner's resoonsibilities are over:regardless of anv substantive environmental problcms dk lo s td by either theen;in)nmental assessment or the environ- ment:~l impact statement.

She Coastal Zone Manacemcnt Act reauire5 developments in the S:ate'q Coastal7one to he reviewed-for consistency'with the StGe's Coastal Zone Management objective\ a\ set forth in a plan or program. The State has delegated to the-four counties the authority to niake such reviews and to eranior denv Shoreline Management Areaoermits for develo~ment. An ~nanswercd~urst ion is whethc the countidr can deny sdch e'rnmi~\ for development alreadv permlttcd under their respective local ranti use i~lans and regulations (like zoning ordinances), or oniy put conditions on such developments to better protect coastal values.

County Land Use Regulation Hawai'i's four count~es-Hawai'i's only local governments since no muni-

cipal governments exist--regulate the rivate use of land (hut, as indicated, only land already classified as Urban py the State's Land Use Commission) by three primary techniques: development plans, zoning, and subdivision controls.

CaunN DeveloomenLPI~ns--Each countv has oreoared and adopted olans of . -. --- ~

various degrees of detail ( I lonolulu's eiiht de;eldpment plans. c o n ~ ~ i e t e with maps, are quile detailed), projecting how all land within i t$ respectwe iuris- diciion should be develooed over the next decade or so. Adooied bv the local countv counc~l, the plans have the forcc of law. Honolulu's charter ;pecifica!l) provides that roning and subdivision ordinances may he neither initiated nor adopted unless theyconform to county development plans.

_ Z r n - - r U I four counties have adopted zoning ordinances which divide all the urban land under their jurisdiction into land use districts regdating the intensity and rype of use permitted on private land. Such ordinmces must conform to the count) development planr and arc applicable only on land zoned Urban hy the land Use Commission.

Subdivision--The control of the land development procers itsclf is exercised - bv mranr uf subdivision ordinances which reeulnte the intensitv of all shgle-family residential development and some multifamily a~ id commercial

Land Use Planning and fimifirs / Collies 165

development as well. There is some question whether these regulations have application to such things as lanned developments and '%orizontal pro erfy regimes" (condominiums). P P a ~ e d developments and condominiums d' o not involve the development of individual dwelling units on individual "lots" in a "subdivision."

MAJOR ISSUES

I'here are several major issues in land use planning and control law which vitally affect the process in Ilawai'i. Amon& the most important are:

Reeulatow Takings - At whai staee inihe land reeulatorv Drocess does a reda t ion sufficientlv - ~~~

devalue p r i v a t e h l that i t beeohes a *taking (like an exercise of eminent ' domain, commonlv called 'condemnation") under the Fiith Amendment to the US. Constiiution? In March 1987. ihe US. Supreme Court decided that wch a regulatory taking occurs only when an "othcrw~\e valid regulation deprlie, .I landowner of .ll economlc value, considcnng the land in quc,tion asa whole. That is, a landowner ma not separate air fights or subsurface rights and claim that the loss of all o f them through regulation is a "taking," WLthout considering what other rights in the land are relatively untouched. "Othelwisevalid means a regulation passed to protect the health and safety and preserve the economic integrity of the county.

Moreover, a landowner may not even raise the "takin " issue until he or she has sought unsuccessfully all potentially available Ian l use permits touse the property in question (the so-called "ripeness" issue), and has tried to have the county or State condemn the property through its eminent domain laws (right of a government to take private property for public use, provided the government pays for it).

The Compensation Issue Once a landowner has eotten over the formidable "rioeness" and "takinr"

harriers, compensation, noimcrely the striking down of the offending regu- Islion, i s appropriate :*s a remedy for a "regulatoy taking.' The 1J.S. Supreme Court held (his to he true in June 1987. However, it appears that compensa- tion is not available unlct5 gJ use-not merely all economic uqe--of the land is [:(ken by the offending regularion (ior example, zoning rivate land for a f ' . park without paying for it). Finally, cornpcnsation is avai ahle only i f the offending rcgulatmn is not "insulated tiy the State's laws paswd t d protect public health and de ty .

Conditinns on Land Develooment Permits ~ ~ ~ - ~ - - ~ ~ p~~

The Supreme Court also heid (again, in June 1987) that governnlent may impose conditions such as dedications, impact fees, and other exactions upon thd land development process, provided there is an essential or rational connection between the condition and alleviation of whatever rrrblem the P land development is expected to cause. Thus, it would be lega to Impose a fee to helo defrav the costs of new water su~vhes for a residential develop- ment, but'it wodd be illegal to require the &dication of lateral beach aciess m the name of preserving beach vlews.

Land Use P/ming and RioriIieslCa/Iies

Preservation of Protected "P" Subzone Lands in the Conservation District

Department of Land and Natural Resources Regulation 4 provides for land use within the Conservation District. Included in the Conservation District is a Protected or " P Subzone to orotect valuable resouroes in such areas as restricted watersheds, plant and'animal sanctuaries. and significant historic. brchaeologicd, geuloglcal, and other unique hites. All land encom- pasing the Northwestern Hawiian Islands (except Midwav Atdl) and areas necessaly for preserving natural CcosJstems are in the I' Suhzone. A great deal of authority is vested in rht nonrd of Land and Natural Resour~cs I(] change bounhrlcs ant! recl:~sify lands in the Conservation District. N- though notification and puhlic hearings are required to do this, and appeals of Uoard deci.~ons are posAle. presiures on Conservation District lands for develooment are increasing. Conflicls arise among those who would preserve liatural areas and those who would develop rands for economic gain.

Preservation of Coastline a n d Agricultural Land versus Housing Needs

In the face ofdeclining need for agricultural land and increased uhlic interest in presewing coastal lands free of development, how should Lawa1.i address thd need for-vastlv more housinn? The current controversies over the proposed residential development nsar Sand) Beach on O'ahu, the past litigation over Queen's Heach, and the Myers hotel/a)ndominiurn project in Waikiki, together with the Waiola Estates litiaation and a~ntinued contro- vercy over camphell Estate's second city devdopment plans, tvpify the con- flicts in goal5 and case.by-case considerations innerent in the Imd use process.

THE FUTURE

There has not been this much ferment i n land developmer~t lau in Ilawai'i for decades. There 1s an urgent need to revlew existing Slate and county laws to brine. them into conformance with new national standards of ~ermissible regulahns and condiwns of land use. Many counties are curr&tly wrec- tlmg with land development conditions such as impact fees and community benefit assessments. as well as major revisions to zoning and subdivision codes. Other counties are strivingto close loopholes icthe land development process left hv variou, State laui. All are contemplating some form of ouhlic-private onrlnershius in the land develovnent uroces, to remove some bf the hcertsint) and in&e:~se comnlunity pa&cipaiion at an earlicr stace in land development decisionmaking, generally hy means of development agree- . ~

ments undei a 1985 State enahlingsiatute. The raw material from various studies indicating a possible surplus of

agricultural land, a shortage of housing, and Statewide concern for reserv- ing various amenities (from beach to mountain to historic structure7 needs to be synthesized, probably at the State level. The synthesis should be used as a basis for reallocating land use decision-making power between the State and counties. Decisions about oresewation of areas of critical State concern and construction dcve~o~mentdwith Stateuidc impact should remain uith the Stare. The counties shcluld control the rest.

Land Use Planning and PkviIics / Collies 167

In Hawai'i we still need to make land use decisions openly, intentionally, and consciously as a society. Decisions should not be made reactively, accidentally, or covertly by a seement of our society. We must conserve what is uni uely Hawaiian but provide for development required for a sophisti- catedsacific island state in the last part of the 20th century. Absolute land preservation and absolute land development will always conflict absolutely. A judicious and planned mix of the two will allow regulation of our Island Paradise.

Important References

Armstrong, R.W. (cd.). 1983. Allas ofHawaii. 2nd edition. Univ. Hawaii Press, Honolulu.

Bosselman, F.P., D.L. Callies, and J. Banta. 1973. 7lre Toking Issue: An Analysis of h e ConsliliiliorralLimi of L m d Use Control. Prepared for the Council on Environmental Quality US. GoM. Printing Office, Washington, D.C.

Callies, D.L. 1%0. Land use control in an island state: Hawaii's statewide mning. 'third World PInming Review 1:187.

Callies, D L 1984. RegulolingPamdise: Land Use Contmls i , ~ Uawoii. Univ. Hawaii P r w , Honolulu.

Cooper, G., and G. Daws. 1985. Lond and Power b~ Hawaii: m e Dcrmcmfic Yeorr. Benchmark Bmkg Honoluln.

Dinell, T. 1W. Land use zoning in a developing state: a brief critique of Hawaii's land use law. 'third Word Ploming Review 2195.

Hawaii State Land Use Commission. n.d. nte Store ofHawaii Land Use Lnw: A Summary. Land Use Commission, Honolulu.

Mandelker, D.R. 1976. Environ!nentol ond Lond Conlml ~ I a f l o ~ . Bobbs-Merrill, Indianapolis, Indiana.

Mandclker, D.R., and A.B. Kolis. 1979. Whither Hawaii? Land use managemen1 in an island statc. Univ. HawaiiLaw Review 1%

Stone. C.P.. and J.M. Scott. 1985. Hawai'i's native wnsvstem~ i m w t a x e , conlliets. and . . suggeslions tor the f u l ~ m Pp. 495-SW IN C.P. Slnne and J.M. Scott (eds.),Hn~ei'i's Temrlriol Eron.rlemr: Prcrervotion ond Monoprmenl. Univ. Hawaii Press for L'aiv. Hawaii ~oooer&e National Park Resources Studies Unit. Honolulu

~nviwrhenfol Impact ~ l a l e ~ e n f . US. Dept. ~ommerce,~at ional oceanic and Atmosphere Administration and State of Hawaii, Washington, D.C., and Honolulu.