Hawaii Land Use Law & Policy

Slump in Timeshare Market May Pull Down Hotel/Resort Profits

noreply@blogger.com (Hawaii Land Use Law) — Wed, 08 Jul 2009 16:13:00 +0000

Today's edition of the Wall Street Journal reports that:

The hotel industry has been reeling for the past year amid a steep decline in business and leisure travel. Now it is moving away from one of its former profit centers: time shares.

Major time-share developers, led by Wyndham Worldwide Inc., Marriott International Inc., Starwood Hotels & Resorts Inc. and others, are scaling back their time-share business as investors in time-share loans demand higher interest rates, buyers become more scarce and resales of time shares put downward pressure on prices and demand for new units.

As the Journal puts it, "giant hotel companies aren't in danger, but the decline in the time-share business will be a drag on profits for years." This has led to "curtailing spending on new resort construction, cutting staffs by up to half and imposing tougher standards for the few buyers qualifying for loans."

Hawaii has seen its share of resort/hotel conversions to timeshares in the past decade. In today's economic climate this could mean more economic pain for Hawaii's hotels with occupancy rates at record lows.

Source: A. Troianovski & K. Hudson, "Hotels Sound the Alarm on Time Shares, Pullback by Major Developers Amid a Slump Will Reshape the Business," WSJ, July 8, 2009.

Maui Developer Proposes 660 Affordable Homes for Maui Project

noreply@blogger.com (Hawaii Land Use Law) — Tue, 07 Jul 2009 18:32:00 +0000

Developer Jesse Spencer through his venture MVI, LLC, is proposing a 1,100 unit residential project for Maalaea, Maui, Hawaii. According to the project's June 2009 EIS Preparation Notice filed with the Office of Environmental Quality Control, the project is called the Ohana Kai Village Affordable Housing Project. It will include 440 market priced residential units, 660 affordable residential units, 7 acres of commercial space, and 16 acres of public space.

The project will take advantage of the state's 201H program, which allows qualifying projects to be exempt from "all statutes, ordinances, charter provisions, and rules of any government agency relating to zoning and construction standards for subdivisions, development, and improvement of land and the construction, improvement, and sale of dwelling units." See HRS Sec. 201H-41. In particular, the project will be seeking an exemption through the 201H process from a community plan amendment and zone change (both existing land use entitlements are inconsistent with the proposed project, particularly the commercial uses). However, 201H was adopted by the legislature to reduce the cost of developing affordable housing to encourage the private sector to invest in the affordable housing market.

Other notable comments in the EIS Publication Notice include the observed presence of foraging Nene geese on the site and 3 archaeologically significant resources. The project traffic will be fed from the Honoapiilani Highway. Water will be provided from a private well and waste water treatment will be processed onsite. A majority of the site has been designated as Prime Agricultural land under ALISH. Mitigation is discussed in the EIS Publication Notice.

The EIS Publication Notice was posted in The Environmental Notice on June 23, 2009 and is within the 30-day public comment period.

Wind Could Generate 40 Times Current Worldwide Consumption of Electricity

noreply@blogger.com (Hawaii Land Use Law) — Sat, 27 Jun 2009 20:21:00 +0000

A paper published by the Proceedings of the National Academy of Sciences finds that a global network of wind turbines could supply more than 40 times current worldwide consumption of electricity. See Xi Lu, Michael B. McElroy, and Juha Kiviluoma, "Global potential for wind-generated electricity," PNAS 2009.

Here is the executive summary from that paper:

The potential of wind power as a global source of electricity is assessed by using winds derived through assimilation of data from a variety of meteorological sources. The analysis indicates that a network of land-based 2.5-megawatt (MW) turbines restricted to nonforested, ice-free, nonurban areas operating at as little as 20% of their rated capacity could supply greater than 40 times current worldwide consumption of electricity, greater than 5 times total global use of energy in all forms. Resources in the contiguous United States, specifically in the central plain states, could accommodate as much as 16 times total current demand for electricity in the United States. Estimates are given also for quantities of electricity that could be obtained by using a network of 3.6-MW turbines deployed in ocean waters with depths depths less than 200 m within 50 nautical miles (92.6 km) of closest coastlines.

This study pushes wind power to its maximum capacity, doing away with reasonable assumptions such as limits imposed by manufacturing capacity and the current electric grid. See Ars Technica (providing a technical review of the paper). However, this does not make the study less reliable since it is looking at maximum potential wind energy not technological or economically feasible wind energy. For policy makers the hope is that technology will catch up with potential.

For wind energy developers, Hawaii is well on its way to increasing wind power capacity. See Maui Wind Energy Producer Proposes Expansion and High Resolution Wind Resource Maps Show 92 MW Energy Potential for Oahu. Hawaii has adopted several laws to ease land use decisions and encourage investment in wind power facilities, for example:

HRS Section 235-12.5, which provides a tax credit for wind-powered energy systems;
HRS Sections 205-2 and 205-4.5, which allows wind generated energy production for public, private, and commercial use and wind machines and wind farms on state classified agricultural lands;
HRS Section 269-101, allows wind turbines to participate in net energy metering programs, which allows utility users to sell net electricity they generate back to the electric grid; and
HRS Chapter 201N, providing a renewable energy facility siting process.

For more on energy related issues, see Energy.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, et al.

noreply@blogger.com (Hawaii Land Use Law) — Thu, 25 Jun 2009 18:05:00 +0000

The US Supreme Court will consider putting constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines in Stop the Beach Renourishment v. Florida (08-1151).

The Court granted certiorari on June 15, 2009, with the following questions presented:

The Florida Supreme Court invoked “nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a ''judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

The opinion issued by the Florida Supreme Court, which is the subject of the appeal, is an excellent primer for littoral property rights, some of which may apply to Hawaii.

Other related documents and pleadings are posted courtesy of SCOTUS Wiki.

Maui County Council Proposes Anti-Mixed Use Zoning Bills

noreply@blogger.com (Hawaii Land Use Law) — Mon, 22 Jun 2009 07:00:00 +0000

The Maui County Council recently proposed two bills that would remove mixed use zoning from the hotel and industrial districts.

According to Wikipedia, "[t]hroughout most of human history, the majority of human settlements developed as mixed-use environments. [...] This historical mixed-used pattern of development declined during industrialisation in favor of large-scale separation of manufacturing and residences in single-function buildings." The idea of mixed use zoning has come full circle. Today, mixed use planning has made a comeback in the form of smart growth. For example, the American Planning Association has developed various smart growth model zoning codes with the aim of "encourag[ing] a mix of uses, the preservation of open spaces and environmentally sensitive areas, a range of housing types and transportation options, and predictable development review processes."

The Maui bills depart from the current smart growth trend. The first bill eliminates residential and apartment uses in hotel districts. The second bill eliminates business and apartment uses in the industrial district.

The Maui Planning Commission must make a recommendation to Council before Council may act on the proposed bill. Resolution No. 09-21 containing a Draft Bill to Amend Section 19.14.020 of the Maui County Code relating to eliminating the stacking of Residential and Apartment uses in the Hotel District will be heard by the Maui County Planning Commission on June 23, 2009. See agenda.

HUD, DOT and EPA Partner Up for Sustainable Communities

noreply@blogger.com (Hawaii Land Use Law) — Mon, 22 Jun 2009 06:20:00 +0000

Federal agencies DOT, HUD and EPA are partnering up to coordinate policy for sustainable communities. The agencies have identified six livability principles as the foundation for their cooperation:

1. Provide more transportation choices
Develop safe, reliable and economical transportation choices to decrease household transportation costs, reduce our nation’s dependence on foreign oil, improve air quality, reduce greenhouse gas emissions and promote public health.

2. Promote equitable, affordable housing.
Expand location- and energy-efficient housing choices for people of all ages, incomes, races and ethnicities to increase mobility and lower the combined cost of housing and transportation.

3. Enhance economic competitiveness.
Improve economic competitiveness through reliable and timely access to employment centers, educational opportunities, services and other basic needs by workers as well as expanded business access to markets.

4. Support existing communities.
Target federal funding toward existing communities – through such strategies as transit-oriented, mixed-use development and land recycling – to increase community revitalization, improve the efficiency of public works investments, and safeguard rural landscapes.

5. Coordinate policies and leverage investment.
Align federal policies and funding to remove barriers to collaboration, leverage funding and increase the accountability and effectiveness of all levels of government to plan for future growth, including making smart energy choices such as locally generated renewable energy.

6. Value communities and neighborhoods.
Enhance the unique characteristics of all communities by investing in healthy, safe and walkable neighborhoods – rural, urban or suburban.

Wind Energy Facilities Permitting Handbook Could Serve as a Template for Most Projects

noreply@blogger.com (Hawaii Land Use Law) — Wed, 03 Jun 2009 16:27:00 +0000

The Permitting of Wind Energy Facilities: A Handbook (2002), prepared for the the Midwest Research Institute, National Renewable Energy Laboratory is a practical guide for navigating land use regulatory issues related to wind energy facilities.

The Handbook's general concepts and road map could also be used for other types of land use projects. The Handbook's key recommendations are:

Early, significant, and meaningful public involvement
Taking an issue-oriented approach to help focus the debate, educate the public and decisionmakers, and ensure an analytic basis for decisionmakers
Ensure that decisionmaking criteria is clear and consistently applied, and made known from the outset to all participants and interested parties
Encourage and facilitate agency coordination so that project review can proceed simultaneously to avoid redundant, conflicting or inconsistent requirements, standards and processes
Establish reasonable time frames
Developers and agencies should know as much as possible about the project, the process, the participants, and the issues prior to commencing the formal permitting process
Systematically narrow the issues of concern and produce factually-based decisions with the goal of limiting any administrative or judicial appeals and allowing them to proceed more efficiently
Ensure that conditions of approval are specific, measurable, agreed upon by all parties, realistic, set within reasonable time frames, enforceable, and actually enforced

These recommendations are equally applicable to land use projects generally, and are discussed in detail in the Handbook.

Of course, the Handbook also addresses its intended purpose by discussing common terms and issues applicable to seeking land use entitlements for wind energy facilities. In that regard, the Handbook is useful and relevant considering the expansion of wind facilities on Maui and the wind project in the pipeline for Lanai. Some of the wind energy facility concepts are also applicable to other proposed alternative energy projects for Hawaii including solar photovoltaic and geothermal energy.

The Handbook is a good read and can be downloaded from the National Wind Coordinating Collaborative (NWCC) Web site at www.nationalwind.org.

More Unrest at the Environmental Council

noreply@blogger.com (Hawaii Land Use Law) — Tue, 02 Jun 2009 16:07:00 +0000

Today's Honolulu Star Bulletin reports that three more state Environmental Council members resigned under protest.

This follows the resignation of Robert A. King, former Chair of the Council in April. See Environmental Council Member Resigns Under Protest. According to the Star Bulletin, members resigned primarily because of "inadequate funding and staffing inside the state bureaucracy," and because "the Governor's Office ignored the council's proposals to revise the state's rules for environmental impact statements."

The Environmental Council was established by Act 132, Session Laws of Hawaii 1970 (codified as, HRS Chapter 341). The Council consists of up to fifteen volunteer members appointed by the Governor with the advice and consent of the Senate. Each member serves staggered four year terms. The Director of the Office of Environmental Quality Control serves as an ex-officio voting member of the Council.

Under the Act, the Council must consist of a "balanced representation of educational, business, and environmentally pertinent disciplines and professions, such as the natural and social sciences, the humanities, architecture, engineering, environmental consulting, public health, and planning; educational and research institutions with environmental competence; agriculture, real estate, visitor industry, construction, media, and voluntary community and environmental groups."

The primary duties of the Council pursuant to HRS §§ 341-6 and 343-5 (Hawaii's EIS law) include:

Serving as as a liaison between the Director and the general public
Soliciting information, opinions, complaints, recommendations, and advice concerning ecology and environmental quality through public hearings or any other means
Publicizing such matters as requested by the Director
Making recommendations concerning ecology and environmental quality to the Director
Monitoring the progress of state, county, and federal agencies in achieving the State’s environmental goals and policies
Preparing an annual report with recommendations for improvement to the governor, the legislature, and the public no later than January 31 of each year
Hearing appeals regarding the nonacceptance of a final statement by an agency
Adopting, amending, or repealing necessary rules for the purposes of Hawaii EIS law under HRS Chapter 343

Hawaii Needs "Genuine environmentalists ... separately from the 'CAVE' people (Citizens Against Virtually Everything)"

noreply@blogger.com (Hawaii Land Use Law) — Mon, 01 Jun 2009 16:36:00 +0000

A professor and environmentalist at the University of Hawaii, discusses the problem of "single issue environmentalists" in Hawaii in today's Star Bulletin.

His editorial concludes that

. . . legislators and regulators and politicians tend to pay more heed to groups that speak with a loud voice rather than getting advice from organizations such as the Hawaii Association of Environmental Professionals, retired scientists and engineers, as well as applying critical thinking, considering history, and stopping long enough to use just plain common sense. These are the factors that all of the above as well as citizens should think over before rushing to join the PC, "green" bandwagon. The intent is good; the means may not be.

Effective and comprehensive environmental policies hamstrung by reactionary, CAVE campaigns can also undermine Hawaii's environmental regulatory system. For example, existing processes under Hawaii EIS law, historic and cultural preservation laws, and coastal zone management laws do work to preserve Hawaii's resources. But all to often, the process is set askew by emotional, reactionary responses to a particular project. Once politicized, decisionmaking is unhinged from valid scientific analysis. Instead, outcomes are based on the wishes of a small group of vocal opponents rather than on a critical assessment of whether impacts from a project can be mitigated or avoided.

From a legal perspective, reactionary law making can have terrible long-run consequences by creating unnecessary complexities in the law, losing focus of the intent of an environmental law, and creating conflicts with other law that work in concert with particular statutes. For example, some legislators were thinking of removing secondary impacts from Hawaii's EIS analysis solely because of one company's experience with the Hawaii EIS regulatory process (which has been in place since the mid-1970s). See Environmental Review Without Secondary Impacts Analysis—Is Hawaii About to Throw Out the Baby with the Bathwater? If adopted, this would be a fundamental change to Hawaii's EIS law and inconsistent with similar national EIS laws.

As the author of the editorial wrote, "we need genuine environmentalists [who base their work on "valid scientific input"]...and we need to urge our legislators to call on them and listen to them."

Guest Contributors

noreply@blogger.com (Hawaii Land Use Law) — Sun, 31 May 2009 08:37:00 +0000

HLUP welcomes submissions subject to the following considerations:

(1) The purpose of HLUP is implicit in its tile, submissions should be consistent with the title and purpose (both posted on HLUP's title page).

(2) Your submission should fall within the "Entries by Subject" list.

(3) Your submission should be related to Hawaii, but need not be about Hawaii laws or land use related events if you can make a connection between the two.

(4) Please don't send a screed about a certain company, project, or government office. It's ok to focus on these for purposes of case study.

(5) HLUP posts fall primarily in 4 broad categories: news, commentary, analysis of a particular law or policy, and review of helpful resources for practitioners.

(6) The audience of HLUP are professionals who work in the field of land use in Hawaii; e.g., lawyers, planners, government administrators, politicians considering related policy, and consultants who work on land use related projects.

(7) HLUP tries to consistently use the Bluebook for citation and the Chicago Manual of Style.

(8) Terms of Submission. You agree that: (1) your submissions and its contents will automatically become the property of HLUP, without any compensation to you; (2) HLUP may use or redistribute the submissions and its contents for any purpose and in any way with attribution to the original author; (3) there is no obligation for HLUP to review the submission; and (4) there is no obligation to keep any submissions confidential.

If you have any questions, please let me know.

Maui Planning Commission Approves First B&B Permit Under New Law

noreply@blogger.com (Hawaii Land Use Law) — Sat, 30 May 2009 06:38:00 +0000

The Honolulu Advertiser reported that the Maui Planning Commission has approved the first application under its new bed-and-breakfast ("B&B") ordinance that allows B&B home businesses within the county's agricultural zoning district.

The Planning Commission approved the special use permit at its May 26, 2009 meeting. The item was listed on the Commission's Agenda as follows:

JOHN G. CAMOU and SANDY BECK CAMOU requesting a State Land Use Commission Special Use Permit in order to operate a Bed and Breakfast operation on 1.2 acres of land in the State Agricultural District at 555 Haiku Road TMK: 2-7-008: 041, Haiku, Island of Maui. (SUP2 2008/0005) (J. Prutch)

Even with the new local B&B law, a state special use permit is required because a B&B is not an allowed use within the state agricultural district pursuant to HRS Chapter 205. Consequently, HRS § 205-6 provides that the Commission may allow uses within the state agricultural district other than those for which the district is classified if it finds that the proposed use is "unusual and reasonable" and that it is consistent with other local rules the county may adopt. In addition, the statute requires the Commission to counsult with the state land use commission, the state office of planning, and the state department of agriculture. Because the property is under 15 acres, the Commission has final approval; otherwise, the state land use commission has final approval.

For more on B&Bs see Bed and Breakfasts and Transient Vacation Rentals/Units.

Appellate Court Issues Opinion in Turtle Bay EIS Case

noreply@blogger.com (Hawaii Land Use Law) — Sat, 23 May 2009 00:56:00 +0000

The Hawaii Intermediate Court of Appeals ("ICA") recently issued an opinion in favor of Kuilima Resort Company ("Kuilima") the owner and operator of the Turtle Bay Resort in Unite Here! Local 5 v. City and County of Honolulu.

The Project

Kuilima's predecessor prepared an EIS that was accepted by the City's planning department in 1985. The EIS studied the environmental impacts of the proposed project which included approximately 1,450 hotel rooms, a golf course, 2,060 condominium units, a commercial complex, and other amenities. Much of the proposed project was not completed (for various reasons) and lay dormant until 2005 when Kuilima submitted a subdivision application. The Turtle Bay project has been the target of consternation by area residents as discussed here and here.

The Circuit Court

The primary parties include Keep the North Shore Country and the Sierra Club (the "Plaintiffs") on one side and the City and County of Honolulu ("City") and Kuilima on the other.

In 2006, the City granted preliminary subdivision approval so that Kuilima could proceed with components of the project studied in the 1985 EIS. Upon subdivision approval, the Plaintiffs sought declaratory and injunctive relief to stop the project in circuit court. The Plaintiffs argued that a supplemental EIS ("SEIS") should have been prepared prior to consideration of the subdivision application by the City.

The circuit court ruled in favor of Kuilima and concluded that Hawaii Environmental Protection Act ("HEPA") regulations should be interpreted such that "an agency can require an SEIS only when there is a substantive change in the project itself." (Emphasis added.) Thus, an SEIS was not required because the Plaintiffs had not shown a substantive change in the project.

The ICA

The Plaintiffs appealed to the ICA. The ICA upheld the circuit court's order in favor of Kuilima. Significantly, the ICA set out the following two-step inquiry to determine whether an SEIS is necessary:

(1) Whether the action (the Project) has changed substantively in size, scope, intensity, use, location or timing? And if so,
(2) Will the change in any of these characteristics likely have a significant effect and result in individual or cumulative impacts not originally disclosed in the EIS?

If the agency answers "no" to the first question, it need not consider the second part of the inquiry and no other statement will be required pursuant to HAR sec. 11-200-26 and HRS sec. 343-5(g).

The ICA did not adopt the Plaintiffs' interpretation of the HEPA rules. In particular, the ICA noted that Hawaii's HEPA rules require an SEIS only upon a "substantive change in the project or action" and not where there are "substantial changes or significant new circumstances or information relevant to the project and action," as with the federal and California laws relied upon by the Plaintiffs.

The Hawaii Supreme Court and Beyond

The Turtle Bay opinion may not be the final opinion in this matter.

The Plaintiffs may seek certiorari from the Hawaii Supreme Court, in which case, the dissenting opinion by Judge Nakamura might be significant. Nakamura supports the broader approach to SEIS determinations advocated by the Plaintiffs. Nakamura would "require the preparation of an [SEIS] when significant changes to the anticipated environmental impacts of a proposed action become apparent such that 'an essentially different action' is being proposed," including "changes to the design of the project itself, changes to conditions surrounding the project, or the discovery of new information," similar to NEPA and CEQA.

Nakamura also dissented from the majority regarding the significance of a subdivision application for purposes of considering an SEIS. In the majority's opinion, there was no need to consider whether the subdivision application was a "trigger" under HEPA since it is part of the "action" that was proposed and studied in the 1985 EIS. However, Nakamura suggests a case-by-case, totality of circumstances approach--i.e., whether or not an agency has "sufficient discretion in rendering its decision on the Subdivision Application that its decision-making would meaningfully and usefully be informed by an SEIS." Under the majority's opinion, there is one trigger for HEPA analysis, so long as the project does not change, no future HEPA analysis is required. Under Nakamura's dissenting opinion, every subsequent agency approval could be a "trigger" under HEPA. If an action is a trigger, it would swallow the SEIS rules because there would no longer be a need to look at whether the project has changed. Instead, if there was a trigger, the HEPA process must be started anew. See, e.g., When a Trigger is Not a Trigger Under Hawaii's Environmental Impact Statement Law (HRS Chapter 343).

As mentioned here previously, an SEIS challenge is a perennial issue in Hawaii environmental law, because HRS chapter 343, Hawaii's Environmental Impact Statement Law, lacks guidance and HAR chapter 11-200, Environmental Impact Statement Rules, lacks clarity. This recent ICA decision has helped to clarify some of these issues.

For more on environmental laws that impact Hawaii, see Environmental Law.

Land Use Commission Revokes Agricultural Boundary Designation for Bridge Aina Le'a LLC

noreply@blogger.com (Hawaii Land Use Law) — Sat, 02 May 2009 23:37:00 +0000

On May 1, 2009, the State Land Use Commission unanimously voted to revert Bridge Aina Le'a LLC's property to its former classification, agriculture, pursuant to HAR Section 15-15-93. This rarely used, extraordinary remedy was a response to Bridge's failure to comply with the Commission's January 17, 1989 Order, as amended on July 9, 1991. Without the urban designation, the project cannot proceed.

The proposed project located on Waikoloa, island of Hawaii, consisted of 1, 924 residential units, a 25-acre commercial parcel, a 30-acre school site to be dedicated to the State Department of Education, 26-acres of neighborhood parks, and a network of biking/walking paths. As part of the Commission's 1989 grant of district boundary amendment from agricultural to urban, the Commission required that 60 percent of the proposed residential units be set aside for affordable housing (i.e., made affordable to residents earning 120 percent of the median income).

In 2005, 16 years after the urban designation, Bridge petitioned the Commission for an amendment to the affordable housing condition, because the 60 percent requirement made the project economically infeasible. By Order dated November 25, 2005, the Commission granted Bridge's request and reduced the affordable housing requirement to 20 percent. The new requirement required that half of the affordable homes be made affordable to residents earning 120 percent of the median income and the other half to residents earning 140 percent of the median income. The total amount of affordable homes required was 385. The Commission also required that the 385th unit be ready for occupancy within 5 years from November 17, 2005, i.e., November 17, 2010.

Under HAR Section 15-15-93(b), the Commission "shall" issue an order to show cause when:

. . . it has reason to believe that there has been a failure to perform according to the conditions imposed, or the representations or commitments made by the petitioner, the commission shall issue and serve upon the party or person bound by the conditions, representations, or commitments, an order to show cause why the property should not revert to his former land use classification or be changed to a more appropriate classification.

According to the Commission's January 9, 2009 Minutes, Commissioner Judge, with the support of fellow commissioners, issued an Order to Show Cause on Bridge for its failure to move forward with the project. Specifically, the Commission pointed out Bridge's failure to obtain permits or develop infrastructure since the Commission's 2005 extension.

A final findings of fact, conclusions of law, and decision and order in this matter is forthcoming.

Lanai City Listed as Endangered Historic Place

noreply@blogger.com (Hawaii Land Use Law) — Thu, 30 Apr 2009 07:24:00 +0000

The National Trust for Historic Preservation recently placed Lanai City, Hawaii, on its annual roster of America’s most endangered historic places.

The Trust’s reasons for listing the property (mostly owned by Castle & Cooke) are described at its Lanai City website. The Trust is a “private, nonprofit membership organization dedicated to saving historic places and revitalizing America's communities.” Its annual list does not have the force and effect of law, and it is not part of a federal or state regulatory process. However, its list may provide encouragement for starting the process.

Preserving historic property may be good for the community, but it is not necessarily good for the private landowner. Under HRS § 6E-10, a private landowner cannot begin construction, alteration, disposition or improvement of any nature on his property if it is “historic property on the Hawaii register of historic places.” Under HRS § 6E-2, “historic property” means any building, structure, object, district, area, or site, including heiau and underwater site, which is over 50 years old. However, being a historic property alone does not trigger preservation regulations; it must also be placed on the Hawaii register of historic places.

The procedure for placing a historic property on the Hawaii register is found under HAR chapter 13-198, which is administered by State Historic Preservation Division, Department of Land and Natural Resources, State of Hawaii. Any person or agency may nominate a building, structure, object, district, or site for entry into the Hawaii register by submitting certain information to the Division. The process includes notice to owners and a public hearing before the Hawaii historic places review board. After the hearing, the Board makes its determination based on criteria enumerated under HAR § 13-198-8.

Once on the Hawaii register, private property is shared, in a sense, with the public. HAR § 13-198-9 states that “[t]he entering and ordering of a property into the Hawaii register signifies a recognition that the owner has a historic property, and that the preservation and maintenance of the property is contributing to the State's and nation's historic patrimony, and is thus serving the public.” The private landowner must follow the rules under HRS § 6E-10 (discussed above) and must comply with the Hawaii Environmental Policy Act for any proposed use related to the listed property under HRS § 343-5.

Private property may concurrently be nominated for listing on the National Register of Historic Places under National Historic Preservation Act of 1966. The U.S. Department of the Interior administers the Act. If a private landowner objects to the nomination, the State Historic Preservation Officer may nominate the property to the National register and specific federal criteria will be reviewed before listing the property. See HAR § 13-198-11, 36 CFR pts 60 and 63. Federally listed properties may take advantage of certain federal tax benefits and grants. A federal listing is less burdensome for the landowner than a state listing. The federal regulations specifically state that the “[l]isting of private property on the National Register does not prohibit under Federal law or regulation any actions which may otherwise be taken by the property owner with respect to the property.” 36 CFR § 60.2.

For more on the annual roster of America’s most endangered historic places, see “Preservation Group Lists Most Endangered Places,” NYT, April 28, 2009.

Is Hawaii Losing Open Space and Agricutural Lands at a Critical Rate?

noreply@blogger.com (Hawaii Land Use Law) — Wed, 29 Apr 2009 07:34:00 +0000

Section 6 of the 2007 State of Hawaii Data Book has records for the amount of lands classified in the four state land use classifications from 1969 to 2006.

In 1969, there was a total of 4,111,500 acres of land in the state of Hawaii, which was divided among the four state land use districts as follows: Urban, 140,163; Conservation, 2,009,087; Agricultural, 1,955,875; and Rural, 6,375. In 2006, there was a total of 4,112,388 acres of land in the state of Hawaii, which was divided among the four state land use districts as follows: Urban, 197,663; Conservation, 1,973,631; Agricultural, 1,930,224; and Rural, 10,870.

From 1969 to 2006, the change of land in each land use classification was as follows: Urban, increase of 41%; Conservation, decrease of 2%; Agricultural, decrease of 1%; and Rural, increase of 71%. However, the percentage of land classified in each category remained relatively stable as a percentage of the total land mass of the state between 1969 and 2006, as illustrated in the following pie charts (note that Rural shows 0% because it is less than 1%):

The numbers clearly illustrate that the state's land use regulatory system under HRS chapter 205 has kept over 95% of Hawaii's land mass in the Agricultural and Conservation districts since 1969, which has the effect of constraining urban development, preserving open space and recreation areas, and retaining large swatches of agricultural land. That's what the numbers would tell us anyway.

Three Finalists Selected as Trustees for State's Largest Private Landowner

noreply@blogger.com (Hawaii Land Use Law) — Tue, 28 Apr 2009 17:16:00 +0000

According to a notice in the April 26, 2009 edition of the Honolulu Advertiser, the Trustee Screening Committee appointed by the Probate Court in January 2009 has nominated three candidates from which the Court will select one Trustee for Kamehameha Schools.

The nominees were whittled down from 68 candidates, they are: Anthony Ching, Executive Officer of the Hawaii Community Development Authority, State of Hawaii; Micah Kane, Chairman of the Department of Hawaiian Home Lands ("DHHL"), State of Hawaii; and Raynard Soon, former Kamehameha Schools executive and ex-DHHL Chairman.

As the largest private landowner in the state, the Trust has a big impact on land use development in Hawaii. According to the The State of Hawaii Data Book 2007, the Trust owned 365,760 acres of land in Hawaii in 2003, the second largest private landowner was Parker Ranch who owned just 134,446 acres by comparison.

According to the notice, the public is invited to submit written comments before 4:00 p.m. on May 26, 2009. Contact Inkinen & Associates for more information.

Kona Company Seeks to Turn Macadamia Nut Shells into Carbon

noreply@blogger.com (Hawaii Land Use Law) — Tue, 28 Apr 2009 10:12:00 +0000

Kona Carbon LLC (aka Big Island Carbon LLC) plans to lease lands from the Department of Hawaiian Home Lands, State of Hawaii to construct coal production facilities in the Department's Kaei Hana II Industrial Subdivision in Kawaihae on the Big Island.

The proposed processing facility would require approximately one acre, with the shell stockpile requiring up to an additional five acres. Kona Carbon will process approximately 10,000 tons of macadamia nut shells annually and employ 20 to 30 workers. Its source of shells will come from the Hamakua Macadamia Nut Processing Plant. The shells will be put through a series of processing steps to convert them into activated carbon for sale and shipment to chemical and pharmaceutical processors. The proposed facility would also generate a biofuel product that would be used to fuel the processing equipment.

Kona Carbon's Draft Environmental Assessment is available for public review and comment at the Office of Environmental Quality Control.

Maui Wind Energy Producer Proposes Expansion

noreply@blogger.com (Hawaii Land Use Law) — Tue, 28 Apr 2009 09:08:00 +0000

Kaheawa Wind Power II, LLC, a subsidiary of First Wind is proposing an expansion of its wind energy generation facility on the island of Maui.

The project includes the construction and operation of a new 21 MW wind power facility (14 wind turbine generators with associated electrical transmission and interconnection facilities) within the State Conservation District. It will be located adjacent to the existing Kaheawa Wind Power facility above Maalaea, Maui.

Because the proposed project may potentially result in the incidental take of four threatened and endangered species [Hawaiian petrel (Pterodroma sandwichensis), Newell’s shearwater (Puffinus auricularis newelli), Hawaiian goose (Branta sandvicensis), and Hawaiian hoary bat (Lasiurus cinereus semotus)], Kaheawa Wind must prepare a a Habitat Conservation Plan pursuant to the Endangered Species Act ("ESA") and HRS Chapter 195D. The objective being to avoid, minimize, mitigate and monitor impacts to protected species.

ESA section 9 prohibits the unauthorized "take" of any endangered or threatened species of fish or wildlife listed under the ESA. Under the ESA, the term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect species listed as endangered or threatened, or to attempt to engage in any such conduct. An unauthorized take can lead to fines and imprisonment. However, the US Fish and Wildlife Service ("FWS") may permit prohibited takings if it is incidental to the carrying out of an otherwise lawful activity. Before the FWS grants an incidental take permit, the applicant must first develop, fund, and implement a FWS-approved habitat conservation plan to minimize and mitigate the effects of the incidental take. The requisite criteria for an incidental take permit can be found under ESA section 10(a)(1)(B) and 50 CFR sections 17.22(b)(2) and 17.32(b)(2).

State law also circumscribes unauthorized takes of endangered or threatened species under HRS section 195D-4. At the state level, the Board of Land and Natural Resources will issue an incidental take license after approval of the HCP by the State's Endangered Species Recovery Committee. The Committee is comprised of biological experts and representatives of affected state and federal agencies. The state's requirements are higher than under the ESA, but both processes are coordinated.

The Draft Kaheawa Wind Power II Wind Energy Generation Facility Habitat Conservation Plan, Island of Maui (April 2009) is available for public review and comment. A public hearing will be held in May according to the April 23, 2009 edition of the Environmental Notice.

Historic Decision at the Land Use Commission; First IAL Designation

noreply@blogger.com (Hawaii Land Use Law) — Tue, 21 Apr 2009 06:54:00 +0000

On March 9, 2009, the Land Use Commission, State of Hawaii granted Alexander & Baldwin its request to designate 3,773.1 acres of land on the island of Kauai to important agricultural lands ("IAL"). See Petition For Declaratory Order To Designate Important Agricultural Lands.

The IAL designation joins four existing designations granted by the Commission (urban, rural, agricultural, and conservation). In Hawaii, counties may zone land within its boundaries subject these state land use designations. The urban designation is regulated entirely by the counties through zoning. Counties have limited zoning authority in the rural and agricultural districts. Conservation districts are regulated by the state through the Department of Land and Natural Resources. See Hawaii Land Use Regulatory System.

The IAL designation is the state's attempt to preserve agricultural land above and beyond land already in the agricultural district. The agricultural designation restricts uses and structures allowed within the agricultural district to those enumerated under HRS Sections 205-2, 205-4.5, and 205-4.6. Predictably, "[a]ctivities or uses as characterized by the cultivation of crops, crops for bioenergy, orchards, forage, and forestry" are allowed. HRS Section 205-2(d)(1). Other seemingly nonagricultural uses are also allowed in the agricultural district, for example, wind farms and open area recreational facilities. So called farm dwellings and employee housing are also allowed within the agricultural district and have been a lighting rod for controversy, since more often than not, palatial residential dwellings tend to grow on agricultural estates like weeds snuffing out the actual agriculture. See “Unbridled Growth”.

The IAL designation is more restrictive than the agricultural designation. IAL is governed by HRS Section 205-41, et seq. The stated purpose of the statute is that "the people of Hawaii have a substantial interest in the health and sustainability of agriculture as an industry in the State." Id. The statute has its antecedent in Article XI, Section 3 of the Hawaii Constitution, which provides as follows:

Section 3. The State shall conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands. The legislature shall provide standards and criteria to accomplish the foregoing.

Lands identified by the State as important agricultural lands needed to fulfill the purposes above shall not be reclassified by the State or rezoned by its political subdivisions without meeting the standards and criteria established by the legislature and approved by a two-thirds vote of the body responsible for the reclassification or rezoning action.

Before the Commission can designate land as IAL, it must consider 8 criteria, which is separate and apart from the criteria considered for the agricultural district. These criteria are enumerated under HRS Section 205-44 as follows:

(1) Land currently used for agricultural production;
(2) Land with soil qualities and growing conditions that support agricultural production of food, fiber, or fuel- and energy-producing crops;
(3) Land identified under agricultural productivity rating systems, such as the agricultural lands of importance to the State of Hawaii (ALISH) system adopted by the board of agriculture on January 28, 1977;
(4) Land types associated with traditional native Hawaiian agricultural uses, such as taro cultivation, or unique agricultural crops and uses, such as coffee, vineyards, aquaculture, and energy production;
(5) Land with sufficient quantities of water to support viable agricultural production;
(6) Land whose designation as important agricultural lands is consistent with general, development, and community plans of the county;
(7) Land that contributes to maintaining a critical land mass important to agricultural operating productivity; and
(8) Land with or near support infrastructure conducive to agricultural productivity, such as transportation to markets, water, or power.

Another difference between the agricultural and IAL district is that for IAL, the legislature sets out specific criteria for when a farm dwelling or employee housing is allowed. Contradistinctively, the counties determine when a permissible dwelling or housing is allowed in the agricultural district. IAL dwellings or housing must meet several specific statutory requirements under HRS Section 205-45.5, including the following: (1) the dwelling or housing must be used exclusively by farmers and their immediate family members who actively and currently farm on the parcel; (2) it cannot take up more than 5 percent of the total acreage of the parcel; (3) an owner of IAL cannot plan or develop a residential subdivision for the parcel; and (4) the construction of dwellings or housing must be supported by agricultural plans that are approved by the Department of Agriculture, State of Hawaii. State law also specifically circumscribes the sale of IAL parcels "solely for residential occupancy." HRS Section 205-51.

Incentives for seeking IAL designation for private landowners include a fast-tracked approval process for the designation of IAL and a landowner may also fast-track re-designation into urban if 85 percent of the petition is IAL. The Alexander & Baldwin petition did not make use of the 85/15 process, instead opting for tax credits. The IAL statute also encourages the state and counties to offer other IAL incentives listed under HRS Section 205-46.

In addition to the voluntary process described above, there is also a mandatory process. For this reason, landowners with large parcels of agricultural lands should be wary of down-zoning. HRS Section 205-47 requires that each county must develop maps of potential lands to be considered for designation as IAL. These maps must be adopted by county council resolution and submitted to the Commission no later than 60 months from the date of county receipt of state funds appropriated for the identification process (so far, only the County of Kauai has received such funds). Upon receipt of the IAL map by the Commission, two state agencies, the Department of Agriculture and the Office of Planning, will review the IAL map. HRS Section 205-48. Finally, the Commission, sua sponte, will designate the IAL based on the IAL map. HRS Section 205-49.

Life After Molokai Ranch

noreply@blogger.com (Hawaii Land Use Law) — Mon, 20 Apr 2009 02:46:00 +0000

In March of 2008, the Molokai Ranch announced that it would mothball its properties and close its doors by the end of month. See Molokai Ranch Closing Its Doors.

The Ranch owns approximately 65,000 acres of the 165,800 acre island of Molokai (pop. 7,404), including 22 Luxury Rooms, 40 Beach Front Tentalows, and an 18 Holes of Golf. The Ranch ceased operations completely after its efforts to build a project at La'au Point on the west coast of the island were stymied by public opposition. The project would have included 200 homes, open space, and conservation areas. It would have generated approximately 100 jobs and the Ranch would have built 1,100 affordable homes, renovated Kaluakoi Hotel, and turned over 51,000 acres of Ranch land to a perpetual land trust for conservation or agriculture.

In, Molokai Ranch: A year after closure, times are hard but spirit is alive, the Maui News reports that "[t]he closures put 120 residents on this island of 7,500 people out of work[,] and that ". . . Molokai has the state's highest unemployment rate, at 12.7 percent, about twice the state average[.]" The former employees are living off of unemployment insurance (which ends soon), while a state taskforce investigates ways to help Molokai with its dire economic challenges.

Adding to Molokai's economic woes, a recent report shows that the median value of single family homes on Molokai dropped 67 percent from 2008 values. See Prudential's First Quarter 2009 Sales Activity.

Maui's Na Wai Eha Water Issue May Soon be Resolved

noreply@blogger.com (Hawaii Land Use Law) — Sun, 12 Apr 2009 00:15:00 +0000

On March 13, 2008, the Commission on Water Resource Management designated the Waihee, Waiehu, Iao, and Waikapu Surface Water Hydrologic Units (a.k.a., Na Wai Eha) as surface water management areas. See Surface Water in Waihee, Waiehu, Iao, and Waikapu Streams on Maui Designated as State Surface Water Management Areas.

The Commission's historic surface water determination (the first surface water management area determination in the Commission's history) was made in the context of the ongoing contested case hearing involving a petition to restore flows to the Na Wai Eha streams and applications for hydraulically related water use permits from diked, high-level water in the mountains.

Stakeholders include the Hawaiian Commercial & Sugar Co. ("HC&S") who used the lions share of Na Wai Eha's water for sugar and more recently land development, local taro farmers and other small farmers, and the endemic and indigenous critters living in the unnaturally bone dry streams where they used to thrive. The crux of the issue before the Commission is how to fairly reallocate approximately 70 million gallons of water diverted from the streams, in a post monoculture Hawaii.

A hearings officer was appointed to prepare a findings of fact, conclusions of law, and decision and order, which must be approved by the Commission at an upcoming meeting. The Hearing Officer's Findings of Fact, Conclusions of Law, and Decision and Order was issued on Apr. 9, 2009.

Chris Hamilton of the Maui News breaks down the 210-page report in his article, Plan could rejuvenate waters of Na Wai Eha.

Reappointment of LUC Commissioners; Environmental Council Member Resigns Under Protest

noreply@blogger.com (Hawaii Land Use Law) — Sat, 11 Apr 2009 06:18:00 +0000

New Appointments. The Governor recently reappointed Commissioners Thomas Contrades and Nicholas Teves to the State Land Use Commission, for terms to expire on June 30, 2013. The Senate must confirm their appointments which is scheduled for a public hearing before the Senate WTL Committee on April 15, 2009, at 2:45 p.m. in state capitol conference room 229. See GM596 and GM597.

Resignations. According to the Honolulu Advertiser, Robert A. King, Chair of the state’s Environmental Council, resigned from the Council "claiming the Lingle administration is not interested in the council’s recommendations." His term was set to expire in 2012.

According to the Senate Committee Report from his 2008 confirmation hearing, Mr. King is the President of Pacific Biodiesel and oversees operations in Hawaii, Oregon, and Texas, as well as construction in the United States and Asia. He is also a founding member of the Sustainable Biodiesel Alliance and the Hawaii Ag Alliance.

Mr. King was the Chair of the Council on February 22, 2007, when the Environmental Council ruled that the State Department of Transportation had erred in granting an exemption for harbor improvements from an environmental review. See Performance Audit on the State Administration’s Actions Exempting Certain Harbor Improvements To Facilitate Large Capacity Ferry Vessels From the Requirements of the Hawai‘i Environmental Impact Statements Law: Phase I, Auditor State of Hawaii, Report No. 08-09, p. 13, April 2008.

Environmental Review Without Secondary Impacts Analysis—Is Hawaii About to Throw Out the Baby with the Bathwater?

noreply@blogger.com (Hawaii Land Use Law) — Sat, 11 Apr 2009 04:44:00 +0000

In an odd twist to the Hawaii Superferry drama, it has been suggested that in order to save the Hawaii Superferry, secondary impact analysis should be removed from Hawaii’s environmental review process. See Momentum grows at Capitol to bring Superferry back to Hawaii and Former State Attorney General Has Plan to Save The Superferry. What would this mean for Hawaii and what’s at stake?

The Hawaii Environmental Policy Act ("HEPA") in a Nutshell. Before we can make sense of secondary impacts we must first understand the HEPA process. HEPA establishes a system of environmental review that ensures environmental concerns are given appropriate consideration in decision making along with economic and technical considerations. HRS § 343-1. HEPA will potentially apply whenever an agency or applicant (hereinafter, “applicant”) initiates an action that requires a discretionary consent or approval. HRS § 343-2. An applicant must comply with HEPA if its proposed action is one of the triggers enumerated under HRS §343-5. The most common trigger is the proposed “use of state or county lands” (e.g., modification to a state or county highway as part of a residential project).

Once triggered, a discretionary approval cannot be granted and the proposed action cannot proceed until the permitting agency does one of the following:

Exemption. Find that the project is exempt from HEPA, because the proposed action “will probably have minimal or no significant effects on the environment.” HRS §343-6.; or

Finding of No Significant Impact (“FONSI”). If not exempt, an environmental assessment (“EA”) must be prepared at the earliest practicable time to determine whether an environmental impact statement (“EIS”) is required. HRS § 343-5(b). The permitting authority will review the EA and may issue a FONSI. If so the process ends here.; or

EIS. If the permitting authority finds that based on the EA “the proposed action may have a significant effect on the environment” then the applicant must prepare an EIS. Upon completion, the EIS must be accepted by the agency issuing the permit.

This is the short of it: discretionary permit-->trigger-->exemption-->EA-->FONSI-->EIS. Embedded in the process are required periods for public notice, public comment, and specific limitations on when a person can sue for perceived deficiencies in the process. See HRS §§ 343-7, 343-5.

What are Secondary Impacts? The words “secondary impacts” are not found in the HEPA statute. HEPA requires only that environmental documents analyze “significant impacts”/“significant effects” that will be caused by the proposed action. HEPA defines significant effects as follows:

[T]he sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State. HRS § 343-2.

Through HEPA, the legislature directed the Environmental Council to establish rules that, among other things, establish procedures to exempt actions that have minimal or no significant effects on the environment; prescribe the contents of an EA; prescribe the procedure for processing and accepting EIS documents; and establish criteria to determine when an EIS is acceptable. HRS § 343-6. These EIS Rules are codified under chapter 200 of the Hawaii Administrative Rules (“HAR”).

Under the EIS Rules “impacts” are far broader and more inclusive than “significant impacts” as defined under HEPA. The EIS Rules define “impacts”/“effects” as including “primary, secondary, or cumulative” effects. “Secondary impacts” are defined as follows:

"Secondary impact" or "secondary effect" or "indirect impact" or "indirect effect" means effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems. HAR § 11-200-2.

"Cumulative impacts” are defined as follows:

“Cumulative impact” means the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. HAR § 11-200-2.

Secondary and cumulative impact analysis occurs in three significant steps under the EIS Rules: (1) when applying for an exemption, (2) when preparing an EA, and (3) when preparing an EIS. If this analysis is missing or lacking, the permit granting authority must deny the requisite request by the applicant.

What do secondary impacts have to do with the Hawaii Superferry? The Hawaii Superferry applied for an exemption from the HEPA process for its high capacity inter-island ferry system from the State Department of Transportation (“SDOT”). SDOT granted the exemption despite a February 2007 opinion issued by the Environmental Council stating that “the state failed to account for the secondary and cumulative impacts of Hawaii Superferry when it ruled that the project did not need an environmental impact statement.” See Marginalized. In August of 2007, the state supreme court similarly held that the exemption was invalid, because SDOT did not consider whether its facilitation of the Superferry would probably have a minimal or no significant impact, both primary (physical harbor improvements) and secondary (impacts resulting from Superferry use of harbor improvements), on the environment in its exemption determination. See Hawaii Supreme Court Publishes Superferry Opinion.

The voided exemption and the statutory requirement that the HEPA process be completed prior to operations ultimately led to the failure of the Superferry, which precipitated its ceasing operations and laying off its employees.

What’s at stake if the legislature bars the analysis of secondary impacts in the HEPA process? In order to remove secondary impact analysis from HEPA, the legislature would need to narrowly define “significant impact” to include only primary impacts and not include cumulative or secondary impacts. This would make the EIS Rules inconsistent with HEPA, forcing the Environmental Council to amend its rules.

For landowners, entrepreneurs, investors, and others seeking approval of discretionary permits unpredictable and overly complex land use laws exacerbate costs. Whether the scope of a HEPA document adequately addresses secondary impact analysis has been the source of litigation, confusion, and consternation, prompting the Office of Environmental Council (“OEQC”) to issue guidance in early 2008. See The OEQC Offers Advice on Secondary Impacts. As a consequence, actions that involve the construction of public facilities or structures (e.g., highways, airports, sewer systems, water resource projects, etc.) may well stimulate or induce secondary effects so that the scope of the HEPA analysis includes taking a hard look not only at an improvement on a state/county intersection, but also the entire project—imagine a 200-unit residential project that needs to make improvements to a state road for access to the project.

A full HEPA EIS can take years and hundreds of thousands of dollars in consultants’ costs and fees. In addition, an EIS document is usually thousands of pages and must be reproduced for public distribution. Anecdotally, practitioners in the business of preparing EIS documents have seen them grow significantly in scope and size since HEPA was first passed in 1974. See OEQC’s Document Site for examples.

Even when HEPA documents are prepared, the broad, unconstrained analysis required by the EIS Rules opens the door to litigation. Without guidance, a secondary impact analysis can take on the problem of the butterfly effect where one might argue that a project in Hilo has an effect on Niihau. There is not bright line, or even grey line, where a secondary and cumulative analysis should end.

For environmentalists, this would narrow the scope of their challenges to significant effects caused directly by the proposed project and not indirect or all matter of foreseeable effects. For example, in the case of the Superferry, the DOT could grant the exemption based on a significant impact analysis that looks only at the direct site of impact and not other impacts that are “incident to and a consequence of the primary impact.” Sierra Club v. SDOT. Arguably, Superferry would not be required to analyze its impact to marine wildlife, traffic, and other primary environmental impacts.

For the public, they would be unable to participate in the HEPA process if exemptions are more freely granted. However, existing state land use procedures mitigates this. First, an exemption is only granted if it is one of the enumerated exemptions under HAR § 11-200-8 and the proposed action must have a minimal or no significant effect on the environment. HRS § 343-6. The bar is still high for HEPA exemptions. Second, persons have an opportunity to sue under HRS § 343-7. Third, the EIS law applies to discretionary approvals. These approvals are generally subject to chapter 91, HRS public hearings. The decision making body is required to hear testimony from the public and to allow intervention of applicable persons in the permitting process. So, even though a project might be exempt from HEPA, the public still has an opportunity to voice its concerns to decision makers.

The middle road. Throwing out secondary and cumulative analysis might be premature without further study. Other state environmental policy acts (“SEPA”) and the National Environmental Policy Act of 1969 (“NEPA”) require secondary and cumulative analysis in their environmental documents. Hawaii should strive to keep HEPA as consistent with NEPA as possible to facilitate coordination for projects that require both HEPA and NEPA documents. For the most part, our courts have deferred to NEPA decisions in federal courts as guidance for interpreting HEPA.

No matter what side of the issue you are on, those who work with HEPA could agree that we need clear HEPA guidance either from the Environmental Council or the legislature so that our courts are comfortable with relying on agency decisions, as it should.

Hawaii Legislative Update: First Crossover

noreply@blogger.com (Hawaii Land Use Law) — Wed, 01 Apr 2009 16:23:00 +0000

Thursday, April 16, is Second Crossover at the Hawaii State Legislature.

Second Crossover is a big deal in the life of a bill. The Hawaii Constitution requires that bills receive three readings on separate days in each body of the legislature before being presented to the governor for consideration. First Crossover, on March 12, was the first big separation of the chaff from the grain—that’s when bills originating in the House or Senate had its three readings and were passed over to the other body. Second Crossover is the last day for bills to receive a third reading in the receiving body (e.g., a bill that had three readings in the House, and crossed over to the Senate, must have its third and final reading on April 16). If a bill makes it through both bodies, it is either sent to a joint conference of House and Senate members to resolve version conflicts or it is transmitted to the governor for consideration.

It is unlikely that some bills, given its procedural posture at this time, will advance after Second Crossover (e.g., bills that were deferred in committee). However, those "zombie bills" are included in the list below, because a dead bill can come back to life through procedural voodoo outside of the usual course.

Here is a list of land use related bills:

Archaeological/Historic Preservation

HB520 HD1 SD1 & SB1672 SD1, Repeals the amendments made by Act 228, Session Laws of Hawaii 2008, which require the taking of archival photographs before conducting any demolition, construction, or alteration of any building over fifty years old or any building listed, or eligible for listing, on the Hawaii or National Register of Historic Places. Status: Will be set for conference.

SB1083 SD1 HD1, Includes additional native Hawaiian organizations for the DLNR to consult with to determine whether a burial site should be preserved in place or relocated and to develop a list of candidates for the burial councils. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB1143 SD1, Requires the state historic preservation officer to possess professional qualification in specific fields of study. Effective 7/1/2050. Status: Referred to WLO, LAB, FIN, referral sheet 28.

Affordable Housing

SB440 SD2 HD1 & SB440 SD2 HD1, Requires counties within 90 days to accept or reject a public infrastructure dedication, under specified conditions, as part of an affordable housing project, or the infrastructure is deemed dedicated. Status: Will be set for conference.

HB361 HD1, Expedites the construction of affordable housing units by requiring ministerial permits associated with the project to be issued by the State or county within 45 days of application. Status: Referred to EDH/TIA, WTL committees.

HB948 HD1 SD1, Increases the reserved housing (i.e., affordable housing) requirement for a planned development on a lot of at least 80,000 square feet in the Kakaako community development district, mauka area. Effective 7/1/2050. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee. Related Senate bill: SB1350 SD2. Status: he committees on HSG recommend that the measure be Passed, with Amendments.

HB1186 HD1, Eliminates the Hawaii community development authority's cash-in-lieu option for meeting reserved housing requirements, while retaining the option in cases of a fractional unit resulting from the percentage requirement calculation. Status: The committee(s) on WTL recommend(s) that the measure be Passed, Unamended.

HB1188 HD1, Increases the number of eligible households: (1) to which the counties may provide flexibility in land use density provisions and public facility requirements, and (2) to which the housing finance and development corporation may lease land for $1 per year per parcel to nonprofit organizations that provide affordable housing, by lowering threshold income limits from 140% to 100% of median incomes. Status: Referred to EDH/TIA committee.

HB1232 HD1 SD1, Requires a portion of housing units in residential developments constructed with state assistance, on land purchased or leased from the State and on land located in a community development district, to be sold pursuant to restrictions that ensure continued affordability over time. Effective 7/1/2020. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

SB754 SD1 HD2, Directs the legislative reference bureau to review the state laws related to affordable housing, to identify strategies to strengthen Hawaii's housing laws. Requires report to the 2010 legislature. Effective date: 7/1/2050. Status: Report adopted. referred to the committee(s) on FIN.

Fees, Taxes

HB39 HD2, Adds a $5 surcharge to the fee charged by a state agency for certain services; for example, any application for, or issuance or renewal of, a permit, license, certificate, registration, or other approval by a state agency and a lease or other conveyance of real or personal property of a state agency. Status: Deferred in WAM committee.

HB1404 HD1 SD1, Makes the general excise tax exemption amendments for timeshare operators and condominium submanagers permanent. Effective July 1, 2050. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee. Related Senate bill: SB1165 SD1. Status: The committee recommends that the measure be deferred.

HB1598 HD1, Taxes a lessor of real property for capital improvements made by a lessee upon the termination of a lease. Status: The committee(s) on CPN recommend(s) that the measure be Held.

HB1604, Imposes a tax upon the value of improvements surrendered to a lessor by a lessee, without compensation to the lessee, upon the expiration of a long-term non-residential lease. Status: The committee(s) on CPN recommend(s) that the measure be Held.

HB1744 HD1, Suspends for 6 years from 07/01/2009 to 06/30/2015 the distribution of transient accommodations tax revenues to the counties. Effective 07/01/2020. Status: The committee on WAM deferred the measure.

SB1111 SD1, Increases the rate of the transient accommodations tax beginning on July 1, 2009, and requires the additional revenues collected from the increase to be deposited into the general fund. Effective 7/1/59. Status: The committee recommends that the measure be deferred.

Transportation

HB139 HD2, Allows the State to enter into agreements with private entities to build, operate, own, or finance newly constructed transportation facilities including toll highways. Effective 07/01/2020. Status: Referred to TIA, WAM committees.

HB363 HD2 SD1, Establishes a commission on transit oriented development to facilitate affordable housing in transit oriented developments by better coordinating transportation and housing planning and programs; requires counties to offer incentives for affordable housing development; authorizes counties to establish priorities for affordable housing in transit oriented developments; requires counties to provide flexibility in public facility requirements for rental housing projects with units for tenants at or below median income levels, with forty per cent for tenants with incomes eighty per cent or below the median. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to TIA committee.

HB617 HD2, Creates a task force to recommend parameters for the creation of mass transit route economic zones including eligibility and benefits and incentives such as tax credits. Report to legislature, including process to designate economic zones and incentives to attract businesses and affordable housing to encourage ridership. Task force terminates on 06/30/10. Effective 07/01/2020. Status: Referred to TIA/EDT/EDH, WAM committee.

Condominiums

HB197 HD1, Gives boards of directors authority to install or allow the installation of solar energy or wind energy devices on the common elements of condominiums. Status: referred to ENE, CPN committees. Related Senate bill: SB606 SD2. Status: The committee recommends that the measure be deferred.

HB355 HD1, Limits any late fee for delinquent condominium common expense assessments to 20% of the monthly maintenance fee per month that any such assessment remains unpaid. Requires an association to give a unit owner 10 business days notice of any delinquent assessments before taking any action for which attorneys' fees may be assessed. Effective 01/01/2020. Status: Referred to CPN committee.

HB875, Extends the condominium dispute resolution pilot project until 6/30/11. Status: The committee on CPN deferred the measure. Related Senate bill: SB574 SD1. Status: he committees on CPC recommend that the measure be Passed, Unamended.

HB876 HD1 SD1, Increases the maximum amount of the special assessment for delinquent monthly common assessments that can be charged against a person who purchases a condominium unit. Expands limitations on association liability for elderly unit owners or residents aging in place to include disabled persons. Status: The committee(s) on JGO will hold a public decision making on 04-02-09 10:15 am in conference room 016. Related Senate bill: SB572 SD2. Status: Deferred in committee.

HB1639, Condominium Property Regimes; Common Expense Assessments
Clarifies the condominium property regime law with respect to common expense assessments. Status: The committee(s) on CPN deleted the measure from the public hearing scheduled on 03-27-09 10:00 am in conference room 229.

SB298 SD1, Increases the amount that condominium associations may recover in maintenance fees from the foreclosure of a condominium apartment from $1,800 to $3,600. Status: he committees on CPC recommend that the measure be Passed, Unamended.

SB595 SD1, Allows the board of directors of an association to allow owners to install antennas for amateur radios. Requires a written statement of the reasons for a denial. Status: The committee recommends that the measure be deferred.

Timeshares

SB1113 SD1, Repeals the requirement that time share units in an existing hotel in a county with a population in excess of 500,000 are required to contain at least 60 units at least 40% of which are to be made available for sale or rental as residential apartments. Status: he committees on WLO recommend that the measure be Passed, Unamended.

SB1352 SD2 HD1, Transfers fee time share interest from the land court system to the regular system. Status: Report adopted and referred to the committee(s) on FIN.

Real Estate, Realtors, Transactions

HB233 HD1, Excludes certified public accountants and licensed real estate brokers and salespersons from the definition of distressed property consultants in the Mortgage Foreclosure Rescue Fraud Prevention Act. Prohibits certain conduct relating to the acquisition of an ownership interest in distressed property by licensed real estate brokers and salespersons. Status: Referred to CPN, JGO committees.

HB268 HD1 SD1 & HB269 HD1 SD1, Both bills require the land court (HB268) and the bureau of conveyances (HB269) to provide, within 10 days and free of charge, an image and index of all instruments that contain real property transactions each week to the administrator of the real property division of a county to be agreed upon in a memorandum of understanding among the counties. Status: Both bills were report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee. Related Senate bills: SB521 SD2 HD1 & SB522 SD2 HD1, respectively. Both bills Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB271 SD1, Permits the registrar of the bureau of conveyances to accept electronic documents with electronic signatures for recording, to provide electronic documents in response to a request, and to convert existing records to electronic format. Status: The committee(s) on JGO will hold a public decision making on 04-02-09 10:15 am in conference room 016.

HB812 HD2 SD1, Allows a tenant who is a victim of domestic violence to terminate the tenant's rental agreement. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB874 HD2 SD1, Prohibits residential real property transfer fees required by a deed restriction or covenant, with certain exceptions. Takes effect January 1, 2046. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee. Related Senate bill: SB1241 SD2. Status: The committee recommends that the measure be deferred until 04-02-09.

HB1593 HD1, Clarifies provisions contained in long-term commercial and industrial ground leases. Protects agriculturally suitable lands. Status: Referred to EDT/WTL, JGO committee.

SB764 SD2 HD1, Clarifies standards for interpreting the terms "fair and reasonable rent" in contract renegotiations of long-term commercial and industrial ground leases; requires subtenants with subleases providing for lessee's recovery of ground lease rent, to be charged their pro-rata share of the renegotiated fair and reasonable rent. Status: The committee recommends that the measure be deferred until 04-03-09.

SB771 SD1, Requires a real estate appraiser to rely on the Uniform Standards of Professional Appraisal Practice when acting as an appraiser in an arbitration to guide the arbitrator's decision regarding an award. Status: Referred to CPC, referral sheet 28.

SB887 SD1 HD1, Revises the escrow depository law to: (1) clarify which escrow transactions are covered by the statute and which are not; (2) update the statute to adequately reflect the present day size of the transactions routinely handled by the industry; (3) provide for more flexibility in supervising and regulating the industry; and (4) ensure adequate protection for the consumer. Effective 01/01/2090. Status: Bill scheduled to be heard by FIN on Thursday, 04-02-09 2:00PM in House conference room 308.

SB6 SD2, Permits the registrar of the bureau of conveyances to accept electronic documents with electronic signatures for recording, to provide electronic documents in response to a request, and to convert existing records to electronic format. Effective 7/1/2050. Status: Referred to WLO, JUD, FIN, referral sheet 27.

SB34 SD1, Excludes licensed real estate brokers and salespersons from the definition of distressed property consultants in the Mortgage Foreclosure Rescue Fraud Prevention Act. Prohibits certain conduct relating to the acquisition of an ownership interest in distressed property by licensed real estate brokers and salespersons. Status: he committee(s) recommends that the measure be deferred until 04-03-09.

Public Utilities, Energy Conservation, Energy Production

HB244 HD1, Directs public utilities to establish discounted rates for providing services used for agricultural activities located in agricultural districts. Status: Referred to WTL, CPN committees.

HB245 HD1 SD1, Allows the development of renewable energy facilities on conservation and agricultural districts and special management areas; provided that the facilities comply with all applicable regulatory laws. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

HB589 HD1 SD1, Exempts leases and easements for renewable energy projects from subdivision requirements; defines "subdivision requirements"; requires agencies to accept instruments for recording and filing. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WTL committee.

HB590 HD1 SD1, Sets a time limit for the filing of the diligence report with the energy resources coordinator; allows the energy resources coordinator to deem a permit approved if no further action or processing is reported by the permitting agency within eighteen months of the completed application. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB591 HD1 SD1, Authorizes preferential rates for the purchase of renewable energy produced in conjunction with agricultural activities. Status: The committee(s) on CPN has scheduled a public hearing on 04-02-09 10:00AM in conference room 229.

SB50 SD1 HD1, Sets terms and conditions for leases of public lands to renewable energy producers, including requiring a public hearing, project completion, design, and financing documentation, and limitations on terminating or altering existing leases of public lands affected. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB241 SD2, Establishes specific performance standards and mandates the use of cool roofs on all new residential and commercial construction in Hawaii beginning in 2011. Status: The committee(s) recommends that the measure be deferred.

SB390 SD2 HD1, Amends the law mandating solar water heater systems for single-family dwellings by clarifying its application to new dwellings and clarifying variance request procedures and authority. Effective 1/1/2050. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on CPC.

Land Use, Planning, Zoning

HB570 HD1, Requires certain agencies to account for sea-level rise and minimize risk from coastal hazards such as erosion, storm inundation, hurricanes, and tsunamis. Also preserves public shoreline access and authorizes the counties to account for annual shoreline erosion rates. Status: Referred to WTL/TIA committees.

HB593 HD2, Allows DLNR to establish an interim construction moratorium along Kailua Beach to protect development from coastal hazards, to conserve and protect beaches, to preserve recreational uses of coastal resources, and to minimize future impacts to the coastal ecosystem. Effective July 1, 2020. Status: The committee(s) on WTL recommend(s) that the measure be Passed, with Amendments. Related Senate bill: SB1318 SD1 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB610 HD2 SD1, Amends the Hawaii State Planning Act to include references to science and technology initiatives in Hawaii. Amends the department of business, economic development, and tourism's reporting requirement to the legislature on the growth industries of Hawaii. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to WAM committee.

HB975 HD1 SD1, Authorizes the Agribusiness Development Corporation to acquire agricultural water systems to provide water for irrigation of agricultural lands. Exempts agricultural water systems from the subdivision requirements of county ordinances. Provides conveyance requirements for the property owner. Effective 07/01/2020. Status: he committee(s) on WAM will hold a public decision making on 04-02-09 9:30 AM in conference room 211.

HB1008 HD1, Protects and promotes the proper use of Hawaii's best agricultural lands by requiring conditions of approval for subdivisions of agricultural land into smaller lots and farm dwellings, thereby ensuring meaningful agricultural use. Status: Referred to WTL, TIA committees.

HB1047 HD1, In a petition for a declaratory order for IAL designation: (1) Requires the agricultural land seeking reclassification to be on the same island as the IAL; and (2) Requires the LUC to evaluate the petition using its general-application decision-making criteria. Status: Referred to WTL committee.

HB1048 HD1, Gives the counties greater authority and flexibility to define uses and regulate land use in the State Rural District consistent with broad State policies and standards. Status: Referred to WTL/TIA committee.

HB1273 HD1 SD1, Allows the use of clotheslines on any privately owned single-family residential dwelling or townhouse. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to CPN committee. Related Senate bill: SB1338 SD2 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

HB1351 HD2, Allows owners of contiguous parcels within the agricultural district to establish private agricultural parks registered with the Department of Agriculture. Status: Referred to WTL committee.

HB1436 HD1 SD1, Amends the permitted uses of land within the agricultural district with soil classifications of A or B to include agricultural education programs conducted on a farming operation. Status: The committee(s) on WTL has scheduled a public hearing on 04-01-09 2:45 PM in conference room 229.

HB1693 HD1, Sets forth requirements for the City & County of Honolulu's Ewa Development Plan. Status: Referred to TIA, WTL committee.

SB536 SD1 HD1, Requires department of business, economic development, and tourism, assisted by a temporary advisory committee, to develop a statewide starlight reserve strategy, including an intelligent statewide lighting law, to preserve the quality of the night sky and its associated cultural, scientific, astronomical, natural, and landscape-related values. Takes effect June 30, 2050. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on FIN.

SB673, Allows the counties to impose within their zoning ordinances performance standards on group living facilities. Status: The committee(s) recommends that the measure be deferred.

SB468 SD1 HD1, Requires certain agencies to account for sea-level rise and minimize risk from coastal hazards such as erosion, storm inundation, hurricanes, and tsunamis. Also preserves public shoreline access and authorizes the counties to account for annual shoreline erosion rates. Creates exception from shoreline setback rules for existing Waikiki beach structures and properties subject to Waikiki Beach Reclamation Agreement, to extent agreement conflicts with setback rules. Status: The committee(s) recommends that the measure be deferred until 04-03-09.

SB1152 HD1, Establishes a one hundred year moratorium on certain building and development projects on agricultural lands located in state senate districts twenty-two and twenty-three. Status: The committee(s) recommends that the measure be deferred until 04-03-09.

Environmental Compliance

HB640 HD1 SD1, Exempts from the purview of chapter 343, HRS, the environmental review law, primary actions that require a ministerial permit, that involve secondary actions relating to infrastructure development within public right-of-ways that have no significant effect on the environment. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

HB1144 HD1, Authorizes the development and use of programmatic safe harbor agreements and programmatic habitat conservation plans that cover multiple landowners or a class of landowners or extend over a wide area or region. Status: The committee on ENE deferred the measure.

SB942 SD1, Ensure compliance with the federal Energy Policy Act of 2005 regarding underground storage tanks. Status: The committees on JUD recommend that the measure be Passed, Unamended.

SB1053 SD2, Allows an agency to transfer the responsibility for preparing and funding environmental assessments and environmental impact statements to the user of the state or county land or new improvements to be constructed with state or county funds necessary to accommodate the user's operations. Status: Referred to EEP, FIN, referral sheet 27.

SB1259 SD2 HD1, Amends chapter 128D, Hawaii Revised Statutes (environmental response law), to be consistent with federal law, which protects innocent purchasers of, and property owners who are contiguous to, contaminated property from liability for addressing contamination they did not cause. Status: The committees on JUD recommend that the measure be Passed, with Amendments.

Ceded Lands, Hawaiian Home Lands

HB921 HD1 SD1, Permits DHHL to negotiate lease terms beyond sixty-five years, and provides a right of first refusal to previous lessees. Prohibits the sale or transfer of ceded lands until the unrelinquished claims of the native Hawaiian people are resolved or reconciliation between the State and the native Hawaiian people is no longer supported. Status: Re-Referred to WTL, JGO/WAM committees. Related Senate bill: SB1085 SD2 HD1. Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on WLO/JUD.

HB949 HD1, Authorizes the department of Hawaiian home lands to issue long term commercial leases. Effective 07/01/2020. Status: Referred to WTL, WAM committees.

SB1677 SD1 HD1, Requires majority vote of the legislature or two-thirds vote of house or senate to disapprove the sale or exchange of state-held lands to non-state entities or persons; requires community briefing where land located prior to sale or exchange. Status: Bill scheduled to be heard by FIN on Wednesday, 04-01-09 3:00PM in House conference room 308.

Landowner Liability

HB951 HD1 SD1, Relieves landowner of liability for any damage, injury, or harm to persons or property outside the boundaries of the landowner's land caused by naturally occurring land failure originating on unimproved land, except for harm arising from negligent or wanton acts by the owner of the unimproved land. Status: Report adopted; Passed Second Reading, as amended (SD 1) and referred to JGO committee.

SB1088 SD2 HD1, Amends definition of obstruction for access to public property. Creates a private right of action for a person to enforce the prohibition of obstruction. Applies, inter alia, to private landowners who obstruct "passageway[s] established by dedication, condemnation, customary use, or open and continuous public use." Status: Passed Second Reading as amended in HD 1 and referred to the committee(s) on JUD.

Open Meetings, Sunshine Law

HB1148 HD1, With respect to notice requirements for a public agency hearing, requires state boards to electronically file meeting notices on the state calendar rather than in the Lt. Governor's office. Status: Referred to JGO committee.

SB906, Expands ability of a board or commission to facilitate public meetings through available interactive conferencing technology. Status: Referred to JUD, FIN, referral sheet 26.

SB1661 SD1, Clarifies permissible attendance and procedures for board members to attend meetings of other boards, departments, agencies, and hearings of the legislature. Effective 7/1/2050. Status: Referred to JUD, referral sheet 28.

State Building Code

SB1645 SD1, Directs the state building code council to review studies and structural tests of bamboo as a construction material, and to recommend standards and criteria for the use of bamboo as an accepted construction material. Status: The committee recommends that the measure be deferred.

For current status on the above bills, click on the above hyperlinks or see Bill Status at capitol.hawaii.gov.

U.S. Supreme Court Holds that Apology Resolution Does not Bar Sale of Ceded Lands

noreply@blogger.com (Hawaii Land Use Law) — Tue, 31 Mar 2009 17:11:00 +0000

The U.S. Supreme Court issued its opinion today in Hawaii v. Office of Hawaiian Affairs.

The Court reversed the Hawaii Supreme Court's holding that the sale of ceded lands would constitute a breach of the state’s fiduciary duty to Native Hawaiians based on federal law. In particular, the Apology Resolution did not strip Hawaii of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the state upon its admission to the Union.

The case has been remanded to the Hawaii Supreme Court. In conclusion, the Court noted that it has "no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law." (Citations omitted.) While it is now clear that the Apology Resolution doesn't have the force and effect OHA hoped for, the Hawaii Supreme Court could still hold that the state is enjoined from selling ceded lands based on state law (i.e., without relying on the Apology Resolution).

For more on the this case see Ceded Lands.