Hawaii Land Use Law & Policy

Hawaii Appellate Court Holds that Native Hawaiian Burials Uncovered by Developer was "Inadvertent"

hilanduse@gmail.com (Hawaii Land Use Law) — Thu, 17 Dec 2009 04:40:00 +0000

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 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.

SCOTUS Hears Oral Arguments in Florida Shoreline Case

hilanduse@gmail.com (Hawaii Land Use Law) — Wed, 02 Dec 2009 16:19:00 +0000

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.

Oral Argument in Shoreline Ownership Case Posted

hilanduse@gmail.com (Hawaii Land Use Law) — Tue, 01 Dec 2009 16:04:00 +0000

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.

RFP Posted for Environmental Review Contract to Support Interisland Wind and Undersea Cable Project

hilanduse@gmail.com (Hawaii Land Use Law) — Mon, 16 Nov 2009 03:20:00 +0000

The state recently posted a request for proposals ("RFP") for environmental studies to support the Interisland Wind and Interisland Cable projects.

The Interisland Cable is intended to connect wind facilities on the islands of Molokai and Lanai to Oahu, with a phased expansion to Maui. The Interisland Cable project is part of the Energy Agreement signed by the State Division of Consumer Advocacy of the Department of Commerce & Consumer Affairs, and Hawaiian Electric Companies ("HEC"), on October 20, 2008. The primary purpose of the Agreement is to move the state "decisively and irreversibly away from imported fossil fuel for electricity and transportation and towards locally produced renewable energy and an ethic of energy efficiency."

The Agreement commits the parties to:

pursuing and integrating as much as an additional 1,000 megawatts ("MW") of renewable energy resources on Oahu including approximately 400 MW of wind power from Lanai or Molokai; 60 MW on the Big Island; and 50 MW on Maui;
establishing a Renewable Portfolio Standard ("RPS") for HEC's obligation to add renewable energy to its power grid (i.e., 25% by 2020 and 40% by 2030);
integrating up to 400 MW of wind power into the Oahu electrical system from one or more wind farms on Lanai or Molokai and transmitted to Oahu via undersea cable systems;
decoupling revenues from sales so that rates will be based upon a system using independent measures to track the cost of providing electric service;
establishing feed-in-tariffs;
eliminating system-wide caps on net energy metering;
supporting the development of an Energy Efficiency Portfolio Standard ("EEPS") for the state;
reaching the goal of 70% clean, renewable energy for electricity and transportation by 2030;
encouraging "gas-optional" electric vehicles;
establishing “lifeline rates”;
establishing a "pay as you save" solar water heating program;
providing for a "Photovoltaic (PV) Host Program"; and
installing advanced meters for all customers who request them.

Two companies have already started planning and/or constructing wind energy facilities in the state. Castle & Cooke is proposing to install a 200 MW wind energy generation facility consisting of approximately 100 to 200 wind turbines on the island of Lanai. First Wind is proposing to install a 200 MW wind energy generation facility consisting of approximately 100 to 200 wind turbines on the island of Molokai. Additional wind turbine locations may be determined based upon site-specific wind measurements, topographical features in the project area, location of sensitive biological and cultural resources, and the type/size of wind turbine selected.

For more on energy initiatives in Hawaii see Energy.

NAR Reports Pending Home Sales Rise for Eight Consecutive Monthly Gains

hilanduse@gmail.com (Hawaii Land Use Law) — Mon, 16 Nov 2009 02:44:00 +0000

The National Association of Realtors (NAR) reported that Pending home sales rose again, marking eight consecutive monthly gains–the longest streak since measurement began in 2001.

NAR's index is released during the first week of each month and is designed to be a leading indicator of housing activity. The index measures housing contract activity, based on signed real estate contracts for existing single-family homes, condos and co-ops.

Does Your Project Trigger the Endangered Species Act?

hilanduse@gmail.com (Hawaii Land Use Law) — Mon, 09 Nov 2009 16:28:00 +0000

The Office of Environmental Quality Control (OEQC) recently posted a collection of native and invasive species flash cards on its web site.

According to the Bishop Museum, there are more endangered species per square mile in the Hawaiian islands than any other place on the planet. For example, of the more than 140 Hawaiian bird species and subspecies present in the Hawaiian islands prior to human contact, more than half have been lost to extinction. Among the remaining 71 endemic bird species, 30 are federally listed as endangered. See The Hawaiian Endangered Bird Conservation Program Five-Year Workplan (2001 – 2005). A list of Hawaii's endangered and threatened species can be found at Bishop Museum's Hawaii's Endangered and Threatened Species Web Site.

For a discussion of the Hawaii and federal endangered species acts, see Endangered Species Act.

DoD Military Realignment from Okinawa to Guam Creates Opportunities and Challenges

hilanduse@gmail.com (Hawaii Land Use Law) — Mon, 09 Nov 2009 02:05:00 +0000

The Department of Defense (DoD) is finalizing the draft environmental impact statement (DEIS) for the relocation of U.S. military resources from Okinawa to Guam. DoD plans to increase its military presence in Guam from about 15,000 in 2009 to more than 39,000 by 2020 at a cost of more than $13 billion. GAO-10-72 October 14, 2009.

The Navy estimates that annual construction spending of $1 billion would require about 5,000 to 10,000 workers and that at its maximum the workforce could consist of 20,000 construction workers. The DoD has estimated more than 1,600 permanent civilian jobs will be needed. See Id.

According to the NEPA Scoping Meeting Summary Report for the project, the realignment will include:

relocation of Command, Air, Ground, and Logistics units (which includes approximately 8,000 service members and 9,000 family members);
relocation of Marines units, including operations, training, and infrastructure changes;
enhancement of the infrastructure, logistic capabilities and improve pier/waterfront facilities to support transient nuclear aircraft carrier berthing at Naval Base Guam; and
placement of a ballistic missile defense task force (approximately 630 service members and 950 family members).

Based on the Scoping Report, one can expect that the DEIS will address, among other things, the following issues:

infrastructure (water, wastewater, solid waste, electrical) capacity;
socioeconomic issues (economic benefits, effects on Chamorro culture, effects on statehood initiatives, private property issues, construction capacity, housing, public safety, and recreation/access issue);
extent of military partnership with Government of Guam to coordinate infrastructure improvements that benefit both civilian and military communities;
transportation impacts;
impacts on natural resources (terrestrial and marine ecosystems, wildlife, and marine mammals); and
ability to implement the construction needed for the buildup.

The DEIS will be posted on November 20, 2009 on DoD's Guam Build-up Environmental Impact Statement Web.

Native Hawaiians Win Milestone Victory in Legal Challenge to State's Administration of Hawaiian Homes Commission Act

hilanduse@gmail.com (Hawaii Land Use Law) — Thu, 05 Nov 2009 06:39:00 +0000

Native Hawaiians under the Hawaiian Homes Commission Act won a class-action lawsuit against the State of Hawaii for failing to promptly award home lots. See Craig Gima, Court rules state failed on trust lands, Star Bulletin, Nov. 05, 2009.

According to the Star Bulletin, the lawsuit was filed in "1999 on behalf of about 2,700 native Hawaiians who claimed they were not promptly awarded homesteads between 1959 and 1988." The next step in the case will be to determine how damages will be resolved. The result could be some form of money damages and/or injunctive relief requiring the state to act. A creative solution might be the kind of oversight ordered on the U.S. Department of the Interior when it was found to have failed in its trust obligations to native Americans.

The Department of Hawaiian Home Lands ("DHHL") administers provisions of the Hawaiian Homes Commission Act, 1920 ("HHCA"). The HHCA provides for the rehabilitation of the native Hawaiian people through a government-sponsored homesteading program. The program is applicable to "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." HHCA Sec. 201.

Seattle Votes to Tax Themselves to Provide more Affordable Housing

hilanduse@gmail.com (Hawaii Land Use Law) — Wed, 04 Nov 2009 07:23:00 +0000

While Hawaii continues to kick the can down the road on affordable housing and impose draconian affordable housing requirements on developments, Seattle put the question to its voters.

Voters responded by overwhelmingly passing an affordable-housing levy, according to the Seattle Times. Details of the levy include:

It will cost homeowners about $17 per $100,000 of assessed property value annually;
The levy will help build or save 1,670 apartment units for renters earning less than 30 percent of the city’s median annual income; and
The levy will provide assistance for 550 renters annually, help fund 180 first-time home purchases and allow the city’s Office of Housing to buy land or buildings for future development.

According to the Seattle Office of Housing, since 1981, Seattle voters have approved one bond and three levies to create affordable housing.

See Marc Ramirez, Seattle overwhelmingly passes affordable-housing levy, Seattle Time, Nov.3, 2009. See also Affordable Housing for more on affordable housing issues.

City Allows More Religious Facilities in Industrial District through Zoning Amendment

hilanduse@gmail.com (Hawaii Land Use Law) — Sun, 01 Nov 2009 22:48:00 +0000

Bill 61, which eases the way for more religious facilities in industrial zoned districts on Oahu, was recently signed into law on October 30, 2009.

The Bill amends the Land Use Ordinance by removing the 1,000-foot separation requirement for meeting facilities in the I-1 Limited Industrial District. The bill primarily addresses the City Council's intent to allow more religious facilities in the industrial zone. However, the 1,000-foot restriction remains in place in areas zoned I-2, for heavy industrial uses.

The bill also removes a three month waiting period for proposed religious facilities.

Honolulu Mayor's State of Rail Transit Speech

hilanduse@gmail.com (Hawaii Land Use Law) — Sat, 31 Oct 2009 23:06:00 +0000

Honolulu Mayor Mufi Hannemann made his, "State of Rail Transit," speech on October 29, 2009 at the Mission Memorial Auditorium. His official speech, in its entirety, can be found at www.honolulu.gov/mayor/stateoftherailtransit102909.pdf.

The project is a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and Ala Moana Center. The system features 21 stations and electric, steel-wheel trains capable of carrying more than 300 passengers each. (See www.honolulutransit.org.) The project will rely, in part, on the Federal Transit Administration's New Starts program.

Gov. Schwarzenegger Sign's Unprecedented Environmental Review Waiver Bill for Los Angeles Area Football Stadium

hilanduse@gmail.com (Hawaii Land Use Law) — Sun, 25 Oct 2009 02:07:00 +0000

Remember the Hawaii Superferry? California seems to be in the same fix, but with a different outcome.

The Superferry attempted to qualify for an agency exemption from Hawaii's environmental review law to avoid preparing an environmental assessment. Then the Hawaii Supreme Court determined that the exemption did not apply. But instead of preparing an environmental assessment, Superferry successfully lobbied the legislature and the governor to pass and sign a bill into law (Act 2) that allowed the project to move forward without an environmental study that some critics were demanding. Then the Hawaii Supreme Court, entering the fray a second time, determined that the Act 2 violated a provision in Hawaii's constitution that prohibits "special laws" concerning the use of state lands.

Gov. Arnold Schwarzenegger signed Assembly Bill No. 81 into law on October 22, 2009, which allows the construction of a 75,000-seat stadium that developers hope will lure an NFL team back to the Los Angeles area. The bill exempts the stadium project from, inter alia, the following land use requirements:

The California Environmental Quality Act (CEQA); and
Any legal requirement concerning the content of a general plan or consistency with a general plan.

In voting to pass the bill, the California legislature considered, inter alia, the following:

The economic recession;
High unemployment in the state;
The project would provide provide economic activity in the Los Angeles and other counties;
The project includes an approximately $2,000,000,000 investment in the local economy, 12,000 construction jobs, and 6,700 permanent jobs in the Los Angeles region;
The project would generate over $760,000,000 in annual economic activity and $21,000,000 in tax revenues annually for state, county, and local governments;
The project prepared a 2004 environmental impact report, which analyzed aesthetics, air quality, biological resources, cultural resources, geology and soils, hazardous materials, hydrology and water, land use and planning, mineral resources, noise, population and housing, public services, utilities, recreation, and transportation and traffic; and
The project prepared a 2008 supplemental environmental impact report, which found that found that the traffic generated by the stadium complex and associated development would generate substantially less weekday traffic and less traffic annually than the original proposed project at the same site.

The California waiver bill, unlike the Hawaii waiver bill, is not constrained by a constitutional prohibition on special laws related to private use of state land. (See Hawaii Supreme Court Holds that the Superferry Bill is Unconstitutional.) In Hawaii's case, judicial invalidation of the environmental waiver bill killed Superferry. In California, the bill nullifies a lawsuit filed by nearby residents of the City of Walnut over the project's environmental impacts. (See State Senate's vote backs Southern California stadium developers.)

Hawaii Land Board Approves 247 Acre Tuna Farm off the Big Island Coast

hilanduse@gmail.com (Hawaii Land Use Law) — Sat, 24 Oct 2009 17:48:00 +0000

On October 23, 2009, the Hawaii Board of Land and Natural Resources approved Hawaii Oceanic Technology, Inc.'s ("HOT") conservation district use application for an open ocean yellowfin and bigeye tuna fish farm located 3 miles due west of Malae Point, North Kohala, Island of Hawaii.

According to HOT's final environmental impact statement ("EIS"), the project is described as follows:

Hawaii Oceanic Technology proposes to culture yellowfin and bigeye tuna using a closed loop aquaculture process, in which the fingerlings are grown from hatchery spawn of captured broodstock. The company proposes to grow out the tuna to market size in offshore submerged cages, segregated by species, that are self-powered un-tethered 54m diameter “Oceanspheres.” The proposed ocean lease site is a one square kilometer (247-acre) site, 1,320-feet deep, located 2.6 nautical-miles offshore Malae Point, North Kohala. Twelve Oceanspheres will be deployed incrementally over four years, culminating with an annual production capacity of 6,000 tons.

Fingerlings will be grown in land-based tanks at the Pacific Aquaculture and Coastal Resource Center in Hilo and/ or a future Natural Energy Laboratory Hawaii Authority tuna hatchery in Kona from eggs collected from locally-caught broodstock. About seven additional ahi would be caught each year in local waters to freshen the gene pool of the captured broodstock. The 12-inch, 5-pound fingerlings will be transferred by vessel to the Oceanspheres, and grown to 100-pound harvest size using dry fish feed through automated feed dispensers.

The land base for operations and maintenance equipment, vessels, and staff will be Kawaihae Commercial Harbor. Tuna will be harvested at sea for transshipping through Kawaihae or Hilo Harbor to existing processing and packaging vendors for air-freight to US mainland, Japan, and Hawaii markets.

Here is what the Oceanspheres will look like, according to the final EIS:

Various concerns were raised during the draft EIS comment period including impacts on wild fisheries, water quality, disease from farmed fish, and possible entanglement of wildlife. HOT prepared a thorough response to comments section in its final EIS, and will mitigate environmental impacts through a design that does not use anchors or loose nets. It will also develop a Marine Mammal Management Plan, Shark Management Plan, and Endangered Species Management Plan and Emergency Management Plan.

HOT's project is the nation's first tuna farm.

New Blawg: California Eminent Domain Report

hilanduse@gmail.com (Hawaii Land Use Law) — Tue, 20 Oct 2009 16:43:00 +0000

California law firm, Nossaman LLP, recently announced the launch of its California Eminent Domain Report blog. Nossaman describes its blog as featuring "original content focusing on industry news, events, and policy impacting eminent domain and valuation issues throughout California."

On Appeal

hilanduse@gmail.com (Hawaii Land Use Law) — Sat, 17 Oct 2009 21:40:00 +0000

Two interesting land use cases will be heard by the Hawaii appellate courts in the coming months.

The first case is Unite Here! Local 5 v. City and County of Honolulu. Petitioners Keep the North Shore Country and Sierra Club, Hawai‘i Chapter's application for writ of certiorari, filed September 8, 2009, was accepted by the Supreme Court on October 13, 2009 and will be scheduled for oral argument. The Supreme Court will consider whether a 20 year old EIS document prepared under the Hawaii Environmental Policy Act should be supplemented, if the proposed project were developed today. The Intermediate Court of Appeal's ("ICA") held that a supplemental EIS was not required because the proposed project analyzed in the EIS did not change. For a complete summary and analysis of the ICA decision, see Appellate Court Issues Opinion in Turtle Bay EIS Case.

The second case is Maunalua Beach Ohana v. Hawaii. In that case, the ICA will determine whether the circuit court properly granted Plaintiffs' partial summary judgment motion. Plaintiffs' motion argued that Act 73 was unenforceable under the Hawaii Constitution unless and until the State pays just compensation to Plaintiffs. The Plaintiffs' motion also sought an injunction forbidding the State from asserting ownership or control over the affected property and from enforcing Act 73. Act 73 (2003), amended various statutes to provide 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 ICA will hear oral argument on Thursday, November 10, 2009 - 9 a.m.

Annual List of the 100 Best Legal Blogs

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 11 Sep 2009 02:16:00 +0000

Every December, the American Bar Association (ABA), releases its annual list of the 100 best legal blogs.

If you find this blog useful and/or interesting, please nominate Hawaii Land Use Law & Policy at http://www.abajournal.com/blawgs/blawg100_submit.

The deadline is Friday, Oct. 2.

Mahalo!

Recent Nature Conservancy Study Looks at Clean Energy Sprawl

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 28 Aug 2009 16:37:00 +0000

Should Hawaii reconsider its energy policy, which seems to focus on biomass and ethanol? Has there been a critical assessment of how particular alternative energy solutions will impact Hawaii's environment?

In a recent article by the Nature Conservancy--McDonald RI, Fargione J, Kiesecker J, Miller WM, Powell J, Energy Sprawl or Energy Efficiency: Climate Policy Impacts on Natural Habitat for the United States of America, August 26, 2009--the authors investigate land-use impacts to U.S. habitat types of new energy development resulting from different U.S. energy policies. Also referred to by the authors as, "the habitat impact of future energy sprawl." Id. at 1.

The study found that biodiesel from soy had 20 times the impact of petroleum on land-use intensity for energy production. See Id. at Fig. 3, p. 4. In addition, the impacts of the following compared to petroleum are:

electricity from biomass, 12.2 times
ethanol from cellulose, 10.2 times
ethanol from corn, 7.8 times
ethanol from sugarcane, 6.4 times
wind, 1.6 times
hydro-power, 1.2 times

The impact from solar photovoltaic, natural gas, solar thermal, coal, geothermal, and nuclear power all have less of an impact than petroleum. Id.

The impact on land may be compounded by indirect and secondary impacts, which the authors discussed as follows:

Energy crop production is a particularly complex situation because even if new energy crop production occurs on land that was previously in agricultural production, remaining global demand for agricultural commodities may spur indirect effects on land-use elsewhere, potentially causing an agricultural expansion in areas far from the location of energy crop production. Other energy production techniques have a relatively small infrastructure footprint and a larger area impacted by habitat fragmentation and other secondary effects on wildlife. A review of the literature found that production techniques that involve wells like geothermal, natural gas, and petroleum have about 5% of their impact area affected by direct clearing while 95% of their impact area is from fragmenting habitats and species avoidance behavior. Wind turbines have a similar figure of about 3–5% of their impact area affected by direct clearing while 95–97% of their impact area is from fragmenting habitats, species avoidance behavior, and issues of bird and bat mortality. Id.

The study suggests four ways to achieve emissions reduction while avoiding energy sprawl: (1) energy conservation to reduce the new energy needed by the U.S.; (2) policy that encourages end-use generation of energy; (3) a flexible cap-and-trade bill allowing for carbon capture and storage at coal plants, new nuclear plants, and international offsets; and (4) appropriate site selection and planning for energy development, e.g., siting in already disturbed places. Id. at 6.

For more on energy issues, see Energy.

How Walkable is Your Community?

hilanduse@gmail.com (Hawaii Land Use Law) — Thu, 27 Aug 2009 16:47:00 +0000

Here is a neat web application, Walk Score by Front Seat, a self-described "civic software company and incubator" based in Seattle, Washington.

Point your browser to www.walkscore.com, enter your address, and the site will figure out how walkable your community is from your address. My address got a 98 out of a 100, not bad. According to the site,

Your Walk Score is a number between 0 and 100. Here are general guidelines for interpreting your score:
90–100 = Walkers' Paradise: Most errands can be accomplished on foot and many people get by without owning a car.
70–89 = Very Walkable: It's possible to get by without owning a car.
50–69 = Somewhat Walkable: Some stores and amenities are within walking distance, but many everyday trips still require a bike, public transportation, or car.
25–49 = Car-Dependent: Only a few destinations are within easy walking range. For most errands, driving or public transportation is a must.
0–24 = Car-Dependent (Driving Only): Virtually no neighborhood destinations within walking range. You can walk from your house to your car!

See How it Works.

Your Walk Score is figured out using an algorithm that measures walkability by the distance amenities are located to a particular address. The closer the amenity, the higher your score--anything beyond a mile receives no points.

Walkability is one of the key considerations of transit oriented development and new urbansim. Read more at Transportation and Planning.

An Alternative View in the Ceded Lands Debate

hilanduse@gmail.com (Hawaii Land Use Law) — Wed, 26 Aug 2009 06:52:00 +0000

In October of 2008, the U.S. Supreme Court held that the Apology Resolution does not bar the sale of ceded lands (i.e., lands formerly owned by Hawaii's monarchs). See U.S. Supreme Court Holds that Apology Resolution Does not Bar Sale of Ceded Lands.

Such a case allows armchair judges to flex their intellectual muscles, ergo, Professor Jon Van Dyke's book entitled, Who Owns the Crown Lands of Hawai'i?, released in 2008. I recently came across a well thought critique of Professor Van Dyke's book by Paul M. Sullivan, Esq., entitled, A Very Durable Myth: A Critical Commentary on Jon Van Dyke's Who Owns the Crown Lands of Hawai'i?, 31 U. Haw. L. Rev. 341 (2008).

Sullivan's primary critique is that Professor Van Dyke's book presents the ceded lands issue as a legal question, "Who Owns the Crown Lands of Hawai'i?" However, what Professor Van Dyke is really doing is advocating for, in Sullivan's words, "Who should own Hawai'i's Crown Lands?" Sullivan's critique is summarized by the following excerpt:

[W]hile the book speaks much of law and history, it advocates a political change. One might grumble that it lacks the rigorous discipline and balance of a legal treatise or a work of historical scholarship, but that is not the book's purpose, and its real shortcoming is not that it is unscholarly, but that its advocacy does not withstand probing examination. What the book proposes is a giveaway of state and federal public property in a race-conscious manner in order to radically change a 160 year old race-neutral land reform program with which the United States had nothing to do, conducted by a foreign government-the Kingdom of Hawai'i-pursuant to its own validly-enacted laws, which achieved very legitimate objectives for the kingdom and its populace largely through the benevolent supervision of a visionary monarch. Professor Van Dyke's book simply does not show that either the federal government or the State of Hawai'i has any reason or any authority to pursue such an endeavor.

The book does show that there was some unfairness in the kingdom's original division of its lands, but this unfairness consisted for the most part of individual acts of misfeasance, fraud or favoritism, both by native leaders and some immigrants, contrary to the law of the kingdom, toward individual claimants or groups of claimants and had nothing to do with the racial background or ancestry of any of the participants or any action or inaction by the United States. It also shows that nearly all of the lands distributed in the original partition went into native hands (noble or commoner), and while a significant part eventually found its way thence, over time, into the hands of American and European immigrants, a great part of the most valuable of lands of the kingdom remains under Native Hawaiian control today. Ironically, it even shows that contrary to the book's own thesis, Native Hawaiians do not have and never had any valid claim to the Crown Lands or other ceded lands, before or after the termination of the monarchy in 1893.

Sullivan's critique is concise, to the point, and a welcome addition to the debate.

See Ceded Lands for more on this topic.

Oahu Bike Plan Available for Public Review

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 31 Jul 2009 06:44:00 +0000

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.

Public Transportation Saves 37 Million Metric Tons of Carbon Annually and 4.2 Billion Gallons of Gasoline

hilanduse@gmail.com (Hawaii Land Use Law) — Sat, 25 Jul 2009 06:12:00 +0000

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:

Clean, Low-Emission, Affordable, New Transportation Efficiency Act - Establishes the Low Greenhouse Gas Transportation Fund.

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.

The panel discussion included:

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

Watch the full presentation at http://www.fednet.net/asx/cpf/CQ/cq072209.asx.

Court Allows Residence that Hovers Eight Feet Above Native Burials to Proceed

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 24 Jul 2009 07:32:00 +0000

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.

Economic Conditions Increase Claims to Rescind Real Estate Puchase Contracts

hilanduse@gmail.com (Hawaii Land Use Law) — Wed, 22 Jul 2009 16:37:00 +0000

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.

State Land Use Commission to Hold Public Hearings on Proposed Rule Changes

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 17 Jul 2009 16:20:00 +0000

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.

Hawaii Supreme Court Ruling Closes Kaimana Beach Surf School

hilanduse@gmail.com (Hawaii Land Use Law) — Fri, 17 Jul 2009 05:13:00 +0000

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:

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.