Trial Court Agrees with State on Stopping Unauthorized Erosion Control Measures on the North Shore of Oahu

This case serves as a cautionary tale for littoral landowners in Hawai‘i. It underscores the importance of understanding shoreline boundaries, obtaining proper permits for erosion control, and respecting the public trust doctrine.  

On September 24, 2024, the State of Hawai‘i filed a complaint against Joshua VanEmmerik, the owner of two residential properties in Haleiwa, for alleged unauthorized erosion control measures that have caused significant debris to fall onto State-owned beach lands and into the ocean. On September 26, 2024, the court granted a Temporary Restraining Order (TRO) to prevent further harm to the environment and public resources.

Here are key takeaways for littoral landowners from this case:

1. Understand Shoreline Boundaries

The State of Hawai‘i owns all land seaward of the “upper reaches of the wash of the waves.” As confirmed in County of Hawai‘i v. Sotomura (1973), this boundary typically aligns with vegetation lines or debris marks left by waves. Littoral landowners must be aware that any construction or erosion control measures that extend seaward of this boundary encroach on State land within Hawaii's Conservation Districts.

2. Unauthorized Erosion Control Measures Can Lead to Legal Action

In this case, VanEmmerik installed erosion control measures, such as geotextile tubes and other solid materials, without obtaining the required permits from the Department of Land and Natural Resources (DLNR). The court found that these unauthorized actions violated the State’s regulations for conservation districts and posed immediate environmental hazards.

Littoral landowners should be aware that all land use activities within Hawaii's Conservation Districts, including erosion control measures, are regulated under Hawai‘i Revised Statutes (HRS) § 183C. Unauthorized actions can lead to enforcement actions, fines, and the need for costly removal of the materials.

3. Permitting Is Critical for Shoreline Management

The State regulates land uses within the Conservation District through a strict permitting process implemented by DLNR's Office of Conservation and Coastal Lands. As highlighted in this case, the owner had requested emergency permits to install erosion control devices but was denied due to prior violations. Littoral landowners must ensure compliance with permit requirements for any activities that may affect coastal lands and submerged lands. Failure to obtain proper permits may result in legal consequences and prevent future emergency approvals.

4. Public Trust Doctrine and Environmental Protection

Hawai‘i’s public trust doctrine ensures that shoreline areas, including beaches and submerged lands, remain open for public use and are protected from environmental harm. In this case, the debris from VanEmmerik’s property blocked public lateral access along the shoreline and created hazards for beachgoers and marine life. Littoral landowners should recognize that their property rights end where the public’s rights begin, and they are obligated to ensure their actions do not infringe on public trust resources.

5. Proactive Compliance Can Prevent Greater Liability

Proactively addressing shoreline erosion in a manner that complies with State regulations can prevent significant legal liability. In this case, the State is seeking declaratory relief, injunctive relief, and damages to restore the impacted shoreline. For landowners, this serves as a reminder that acting prudently to manage erosion and comply with legal requirements is essential to avoiding costly litigation and damage to natural resources.

Hawai‘i Supreme Court Upholds Prohibition on Short-Term Vacation Rentals in Agricultural Districts

In a recent opinion, Rosehill v. State of Hawai’i Land Use Commission, the Hawai’i Supreme Court (HSCT) reinforced the agricultural district’s purpose under state land use law, holding that farm dwellings in the agricultural district cannot be used as short-term vacation rentals. This decision underscores the state’s commitment to preserving agricultural lands for agricultural purposes, a principle enshrined in Hawai’i Revised Statutes (HRS) Chapter 205.

The HSCT’s Holding

At the heart of this case was a dispute over whether short-term vacation rentals could be allowed in farm dwellings in the agricultural district. The Rosehill Petitioners argued that their farm dwellings should be allowed to operate as short-term vacation rentals, pointing to the absence of a specific minimum rental period in the governing statutes. They claimed that their use of the dwellings as rentals for 30 days or fewer should qualify as a permissible use under HRS § 205-4.5(a)(4), which permits farm dwellings in agricultural districts.

However, the HSCT disagreed, siding with the Land Use Commission (LUC) and the County of Hawai’i. Both argued that allowing short-term vacation rentals would undermine the purpose of the agricultural district. The HSCT held that farm dwellings must be used in connection with a farm or involve income from agricultural activity, and short-term vacation rentals are incompatible with this requirement.

Preserving Agricultural Land Use

The HSCT emphasized that the primary goal of the agricultural district is to preserve land for agricultural use. The decision reinforces the legislative intent behind the state’s land use law, which, in sum, prevents agricultural land from being repurposed for non-agricultural uses that could erode the long-term viability of Hawai’i’s agricultural economy.

The HSCT pointed to the clear language of HRS § 205-4.5(b), which restricts any unpermitted uses in the agricultural district. Since short-term vacation rentals are not listed as a permitted use, they are prohibited. The HSCT further rejected the petitioners’ argument that farm dwellings could serve both agricultural and transient accommodation purposes, stating that short-term vacation rentals would undermine the agricultural focus of the land.

In re Kanahele and the Issue of Jurisdiction

In addition to the substantive land use issues, the case highlighted an important procedural point regarding the jurisdiction of appeals from agency declaratory orders under HRS § 91-8.  Citing its recent opinion, In re Kanahele, the HSCT held that Rosehill Petitioners should have directly appealed the LUC’s declaratory order to the HSCT, not the circuit court.

This jurisdictional rule stems from Act 48, which amended Hawai’i’s land use laws to provide for the HSCT’s direct review of certain contested cases. In Kanahele, the HSCT expanded its jurisdiction to hear direct appeals to agency declaratory orders. Consequently, the Rosehill Petitioners’ case was transferred to the HSCT; however, the HSCT held that “the circuit court’s findings of fact and conclusions of law have no weight.” This highlights the importance of navigating the correct procedural path when appealing agency decisions.

HSCT Defers to Agencies

In its decision, the HSCT addressed the issue of agency deference, affirming that it will generally defer to an agency’s interpretation of ambiguous statutes unless that interpretation is “plainly erroneous or inconsistent with the underlying legislative purpose.” The HSCT upheld the LUC’s interpretation of HRS § 205-4.5, emphasizing that the LUC’s reading aligned with the statute’s goal of protecting agricultural lands. In doing so, the HSCT explicitly noted that its approach to administrative deference differs from recent shifts in federal jurisprudence, particularly the U.S. Supreme Court’s (SCOTUS) overruling of Chevron v. Natural Resources Defense Council in Loper Bright Enterprises v. Raimondo. The HSCT pointed out that unlike the federal courts, which have moved away from deferring to agencies in cases of statutory ambiguity, Hawai’i courts continue to respect agency expertise in interpreting complex regulatory schemes when consistent with legislative intent. This approach underscores Hawai’i’s commitment to preserving judicial deference in administrative matters.

Key Takeaways

• Short-Term Rentals in Agricultural Districts Are Prohibited. The HSCT’s decision firmly establishes that short-term vacation rentals are incompatible with farm dwellings in agricultural districts.
• Enforcement of County Ordinances. The County of Hawai’i’s ordinance prohibiting short-term rentals on lots created after June 4, 1976, in the agricultural district was upheld. Counties can enforce such ordinances, even when they impose stricter limitations than state law.
• Direct Appeals Under Act 48. The HSCT’s citation to In re Kanahele reminds us that appeals from LUC declaratory orders must go directly to the HSCT, bypassing the circuit court. 
• Agency Deference. The HSCT expressly stated that it recognizes the principle of agency deference and disagrees with SCOTUS’s overruling of Chevron.

The Rosehill decision affirms the state’s commitment to protecting agricultural lands from incompatible uses and sets a clear line on allowed uses in the agricultural district. 

Hawaii Supreme Court Defines "Potable" and "Brackish" Water -- Resort Allowed to Water its Golf Course

The Hawaii Supreme Court has been creating new real estate and land use law over recent months, e.g., HawaiiUSA Fed. Credit Union v. Monalim, No. SCWC-16-0000807 (Apr. 30, 2020) (changing foreclosure math; concurring and dissenting opinion by Nakayama, J. in which Recktenwald, C.J., joins); and Haynes v. Haas, No. SCWC-16-0000570 (May 5, 2020) (expanding public nuisance damage awards).

The latest is Lana’ians for Sensible Growth v. Land Use Comm’n, No. SCOT-17-0000526 (Haw. May 15, 2020) (concurring in the judgment and dissenting by Recktenwald, C.J., in which Nakayama, J., joins).  In this case, the central issue is what the state land use commission ("LUC") meant by its 1991 condition of approval in a district boundary amendment issued by the LUC to Lanai Resorts, LLC, which allowed it to build a golf course.  

Specifically, Condition 10 provides:

10. [The Resort] shall not utilize the potable water from the high-level groundwater aquifer for golf course irrigation use, and shall instead develop and utilize only alternative non-potable sources of water (e.g., brackish water, reclaimed sewage effluent) for golf course irrigation requirements.

Several challenges by Lana’ians for Sensible Growth ("LSG") ensued on various aspects of Condition 10.  The question before the court in the instant case is whether the LUC erred in its follow up 2017 order concluding that the Resort did not violate Condition 10 based on the quality of water the Resort was using. 

The court disagreed with how the LUC defined “potable” and “brackish” water.  The court, at length, opined on what it considered the plain meaning of those terms.  Ultimately, the court concluded that its definition of these terms resulted in the same conclusion the LUC arrived at in its 2017 order.  In other words: No harm, no foul.  

The minority disagreed with the court's departure from the record:

The LUC’s conclusions are supported by the record and correctly apply the law. The Resort’s use of brackish water from Wells 1 and 9 did not violate Condition 10, nor does such a reading of the Condition violate the public trust doctrine.

[ . . . ]

The majority, however, defines potable in reference to “county water quality standards.” This reading ignores the terms of the Condition, for “county water quality standards” appears nowhere in it. Because the majority creates a standard contrary to the text of the Condition, deprives the Resort of fair warning of its ongoing obligations under the LUC’s Order, and provides little useful guidance to the Resort for future water use, I respectfully dissent.

In the end, the same conclusion is reached by the majority and minority:  The LUC’s June 1, 2017 LUC order is affirmed.  

The challenge going forward for drafters is that courts may go beyond the four corners of an administrative order to find meaning even though, as the minority points out in this case, the terms at issue are defined in the order.

Land Use and Planning Law Can be Beautiful--Literally

A word cloud is an image composed of words used in a particular text, in which the size of each word indicates its frequency.  The word clouds below show the 50 most frequently used words in selected sections of the City and County of Honolulu's ordinances related to land use.

Waikiki Special District
ROH Sections 21-9.80 through 21-9.80-9.

TOD Special Districts
ROH Sections 21-9.100 through  21-9.100-4

Interim planned development – Transit (IPD-T) Projects
ROH Section 21-9.100-5

California Supreme Court Upholds San Jose Inclusionary Zoning Policy

In Cal. Bldg. Industry Assn. v. City of San Jose (opinion filed on June 15, 2015), the California Supreme Court upheld San Jose’s inclusionary housing ordinance that requires new residential developments to sell 15 percent of proposed new units at an affordable housing price.

In reaching its decision, the Court opined, “[T]he ordinance does not impose an ‘exaction’ on developers’ property under the takings clauses of the federal and California Constitutions.” In the Court’s opinion, this is not a case of an unconstitutional condition or exaction as asserted by California Building Industry Association (CBIA), but rather an “example of a municipality‘s permissible regulation of the use of land under its broad police power.” This constitutional “police power” analysis is significant in that it is far more difficult to overcome and removes a landowner's' right to just compensation for a government taking of private property.

The City of San Jose enacted an inclusionary housing ordinance that, among other features, requires all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price that is affordable to low or moderate income households.  (See below for a description of the ordinance.)  CBIA’s challenge rested primarily on the unconstitutional conditions doctrine, as applied to development exactions under the takings clauses (or, as they are sometimes denominated, the just compensation clauses) of the United States and California Constitutions.

The CBIA maintained that the ordinance was invalid on its face on the ground that the City, in enacting the ordinance, failed to provide a sufficient evidentiary basis to support its policy. The ordinance failed to demonstrate a reasonable relationship between any adverse public impacts or needs for additional subsidized housing units in the City caused by or reasonably attributed to the development of new residential developments. CBIA argued that the conditions imposed by the City's inclusionary housing ordinance would be valid only if the City produced evidence demonstrating that the requirements were reasonably related to the adverse impact on the City's affordable housing problem that was caused by or attributable to the proposed new developments that are subject to the ordinance’s requirements, and that the materials relied on by the City in enacting the ordinance did not demonstrate such a relationship.

The Court disagreed with CBIA and dismissed the takings based argument.  The Court opined, “[T]he conditions imposed by the San Jose ordinance at issue here do not require a developer to pay a monetary fee [which may have been a takings issue] but rather place a limit on the way a developer may use its property.” The Court further opined, “[T]he conditions are intended not only to mitigate the effect that the covered development projects will have on the City's affordable housing problem but also to serve the distinct, but nonetheless constitutionally legitimate, purposes of (1) increasing the number of affordable housing units in the City in recognition of the insufficient number of existing affordable housing units in relation to the City's current and future needs, and (2) assuring that new affordable housing units that are constructed are distributed throughout the City as part of mixed-income developments in order to obtain the benefits that flow from economically diverse communities and avoid the problems that have historically been associated with isolated low income housing.”

As a result of this opinion, municipalities in California have far greater latitude for imposing inclusionary zoning requirements by ordinance on residential developers, so long as its legislative bodies can show a “reasonable relationship to the public welfare” that has “a reasonable basis in fact . . . to support the legislative determination.”

Summary of San Jose's Inclusionary Zoning Policy

• Applies to all residential developments within the City that create 20 or more new, additional, or modified dwelling units
• 15 percent of the proposed on-site for-sale units in the development shall be made available at an affordable housing cost to households earning no more than 120 percent of the area median income for Santa Clara County adjusted for household size
• The requirement increases to 20 percent of the total units in the residential development if (1) units are provided off-site, or (2) developer opts for in-lieu fees for equivalent units
• Incentives include (1) density bonus, (2) reduction of parking spaces, (3) reduction in set-backs, and (4) financial subsidies and assistance from City in sale of affordable units
• A developer may seek a waiver from these requirements by showing "no reasonable relationship between the impact of a proposed residential development [and the ordinance]"

The San Jose inclusionary housing policy is further discussed on the City's web site at https://www.sanjoseca.gov/index.aspx?NID=1305. 

Is Solar Hawaii’s Energy Panacea?

Today’s Pacific Business News reports, Group formed to seek a public acquisition of Hawaiian Electric Co.

The group calls itself “KULOLO” an acronym for “keep our utilities locally owned and locally operated.”  The group is lead by Robert Harris of Sunrun, formerly the executive director of the Sierra Club Hawaii. 

The only member of Kulolo identified on its website is The Alliance for Solar Choice (TASC).  According to TASC's website:

The Alliance for Solar Choice (TASC) leads the rooftop solar advocacy across the country.  Founded by the largest rooftop companies in the nation, TASC represents the vast majority of the market.  Its members include: Demeter Power; Silevo; SolarCity; Solar Universe; Sunrun; Verengo; and ZEP Solar.

Kulolo’s plans are short on details.  However, they do mention Kauai Island Utility Cooperative (KIUC) as a favorable model.  KIUC is a not-for-profit generation, transmission, and distribution cooperative owned and controlled by its members.  However, KIUC does not focus solely on solar energy.  KIUC’s energy portfolio includes a growing percentage of hydropower, photovoltaic, bio-fuel, and biomass.

Kulolo’s proposal, if it includes Oahu, should take into account land use policies that evolved over several generations.  Existing community and general plans direct growth away from agricultural lands and open space to the urban core.  Part of Oahu’s future will include communities that build up rather than out.  This means less rooftops for solar.

If Kulolo is successful, let us hope that the outcomes they pursue for the public are as sweet as their moniker. 

Land Use Cases to Watch: Hawaii Supreme Court

Kilakila `O Haleakala v. Board of Land and Natural Resources, was heard by the Hawaii Supreme Court on Thursday, April 2, 2015.  This appeal arises from BLNR’s granting of a conservation district use permit (“CDUP”) to the University of Hawaii (“UH”) on December 1, 2010.  The CDUP allows the construction of the Advanced Technology Solar Telescope (“ATST”) project atop the summit of Haleakala on Maui. 

Kilakila `O Haleakala and others challenge the CDUP on several grounds.  In response, UH and BLNR argue that its findings (1) were not "clearly erroneous" (the standard of judicial review), and (2) complied with the CDUP criteria the board must consider.  UH and BLNR ask the court to affirm the ICA and circuit court’s decisions upholding the CDUP.

Questions from the court primarily related to (1) connection between impacts and proposed mitigation to address those impacts, (2) potential impact of political pressure on due process, and (3) measuring cumulative impacts.

Surfrider Foundation v. Zoning Board of Appeals, City & County of Honolulu, was heard by the Hawaii Supreme Court on Thursday, February 19, 2015.  This appeal arises from the City’s granting of a zoning variance from Revised Ordinances of Honolulu (“ROH”) § 21-9.80-4(g)(2), in 2010. 

ROH § 21-9.80-4(g)(2), provides  that “no structure shall be permitted” within 100 feet of the certified shoreline and that “[b]eyond the 100-foot line there shall be a building height setback of 1:1 (45 degrees) measured from the certified shoreline.”  The City variance allows the structure to be taller and closer to the certified shoreline based on its assessment of variance factors under the City Charter.

Sierra Club v. Castle and Cooke Homes Hawaii, will be heard by the Hawaii Supreme Court on Thursday, May 21, 2015.  This appeal arises from the State Land Use Commission’s (“LUC”) granting of a land use district boundary amendment to Castle and Cooke that would allow the Koa Ridge Makai and Waiawa commercial/residential developments.  Sierra Club argues that the reclassification violated Article XI, Section 3 of the Hawaii State Constitution, which provides that the “State shall conserve and protect agricultural lands,” and that “[t]he legislature shall provide standards and criteria,” to implement this provision.  They also argue that the Commission violated Hawaii Revised Statutes §§ 205-41 through -52, which implements said constitutional provision.

PBS Insights Panel Discusses Housing, Agricluture, and Other Land Use Issues

Selected Tweets from last night's live show, PBS Insights.

Souki: Ag is not just land; it's also labor and capital. How can we enable more people to farm? #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Atta: The city is trying to shift to multiple modes of transportation and put jobs and homes closer together. #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Reppun: "We need to change the kind of agriculture that we do." #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Minerbi: "We need, of course, both (housing and ag)." #pbsinsights
— PBS Hawaii (@pbshawaii) February 27, 2015

Hawaii's ag land, highlighted in green. #pbsinsights pic.twitter.com/DBmNhBFJYG
— PBS Hawaii (@pbshawaii) February 27, 2015

Rejoining Private Practice

Aloha faithful readers.  I wanted to let you know that I have rejoined the private sector.  Mahalo.

Governor Ige Supports Rail Among Other Land Use Related Priorities in His First State of the State Address

Governor David Ige gave his first State of the State address to a joint session of the Hawaii State Legislature today.

Here's what he said about land use related priorities:

• He supports, "low-cost government investment tools [that] can be used to create affordable homes for working families," like the interim loan of $5 million provided to enable the Kapolei Lofts, a public-private partnership with the State, the City and a private developer.
• He supports the Honolulu Rail Transit Project.  In his words, "This governor wants rail to succeed and I’m committed to it."  He recognized that the State owns a large portion of the lands near proposed stations.  He said that, "Rail can be the driver to help us build future communities on Oahu—to sensibly direct growth, protect open space and agriculture, stimulate business, reinvigorate older neighborhoods, and build affordable homes."  As part of his actions to support Rail, he will fill a position in the Office of Planning to help assess and evaluate parcels for affordable homes.  This will likely build on the previous work Office of Planning engaged in that lead to the report entitled, "Leveraging State Agency Involvement in Transit-Oriented Development to Strengthen Hawaii’s Economy."
• He supports increased agricultural production in Hawaii, through the preservation of agricultural lands.  In addition to land preservation, his strategy includes developing agricultural parks, combating invasive species, and reassessing "the areas that determine whether a local farmer can survive."

The Governor's complete speech is posted on his Web site.

Land Use Policy Priorities: Opening Day of the 28th Hawaii State Legislature, 2015

Yesterday kicked off the beginning of Hawaii’s 28^th legislative session.  Barring a special session, it will end on May 7, 2015, Sine Die (the length of a regular NFLseason).

The legislature prides itself on the number of bills it introduces and passes each year.  Aside from the many substantive bills introduced by each legislator, many bills are marked “introduced by request,” which ostensibly means the legislator introducing the bill does not necessarily support the bill.  Other bills are labeled “short form,” which means that any substantive matter can be inserted in the bill at some point in the legislative process so long as it has some relationship to the bill’s title.  This can amount to thousands of proposed bills and resolutions.

Many of these bills drop out of the process, are merged with other bills, or are significantly amended or completely replaced.  Things begin to gel as we get closer to May and around crossover in mid-February.  However, if you are tracking a certain bill and want to be sure it is crafted in a way that makes sense to your business; you will want to be involved throughout the process.

Yesterday’s Opening Day remarks by the Senate President and House Speaker give some insight on the priorities for each chamber.  The following is a summary of their land use related priorities.

Senate President Donna Mercado Kim opened her remarks on a nostalgic note and played Peter, Paul and Mary’s song, “Where have all the flowers gone?”  She also referenced the popular “Hawaii Calls” radio program that ran from 1935 through 1975.  She noted the issue of sea-level rise impacts on Hawaii’s beaches and the decline of “Hawaiian entertainment in Waikiki,” Koa, Ohia-Lehua, fish, and opii.  To address these issues, she noted the following actions:

• Providing “dedicated funding using existing TAT revenues for the maintenance and restoration of beaches across the state[.]”
• “Giving the counties more local control over land use classifications by eliminating the Land Use Commission and overlapping operations to make the permitting process more efficient[.]”
• The Senate expects “the Hawaii Public Housing Authority, the counties, and private sector to come up with viable solutions” to “the shortage of affordable housing[.]”

Over in the House, House Speaker Joseph Souki opened his remarks emphasizing the need for hard work and collaboration to address issues facing the people of Hawaii.  He noted Governor Ige’s call to work together and “bring as many people and ideas to the table as possible.”  The Speaker’s focus in the area of land use was as follows:

• Transit Oriented Development  should be used to “direct growth along our rail stations, encouraging commercial development around them and building affordable neighborhoods on nearby state lands.  Directing growth in this way will also protect open space and agriculture, as well as minimize times when we are forced to choose between growth and the environment.”

Opening day remarks can be found in full at http://www.capitol.hawaii.gov/speeches/2015opening.aspx, including remarks by Senate Minority Floor Leader Sam Slom and House Majority Leader Scott Saiki.

Same Blog, Different Web Address

The Hawaii Land Use Law and Policy blog has a new Web address.

You can find us at www.hawaiilanduselaw.com.

Our old Web address will redirect you automatically.

Slides for 2015 Hawaii Land Use Law Conference

I will reference the following slides for my panel at the 2015 Hawaii Land Use Law Conference.  

Our panel will also be discussing the recent Hawaii Supreme Court holding in DW Aina Le‘a Development, LLC v. Bridge Aina Le‘a, LLC and what it means for regulators and the regulated.

2015 Hawaii Land Use Law Conference from Jesse Souki

Guest speakers include Prof. Richard Epstein (Keynote Speaker), Laurence A. Tisch Professor of Law, New York University School of Law, and Prof. Patricia E. Salkin (Guest Ethics Speaker), Dean and Professor of Law at Touro Law Center in Central Islip, New York.

If you haven't already, signup at the Hawaii State Bar Association Web site.  

Things I Learned Managing a Public Agency

Tomorrow marks the end of a significant chapter in my life, serving the public in the executive branch of Hawaii state government.  

In 2011, I was honored to be appointed by Governor Abercrombie and confirmed by the senate to serve as the Director of the State of Hawaii Office of Planning.  More recently, I served as the first deputy to the chair of the Department of Land and Natural Resources. 

With the hardworking civil servants of these agencies, community and business partnerships, and the support of elected officials, we accomplished many great things.  To name just a few, the State of Hawaii adopted a statewide climate change adaptation policy that is integrated into the statewide planning system; we moved state agencies forward on transit-oriented development as it relates to state properties along the planned 20-mile, 21-station Honolulu rail transit project; we developed a statewide food security strategy; we completed the 2014 Hawaii Ocean Resources Management Plan; we laid the groundwork for Hawaii's hosting of the 2016 IUCN World Conservation Congress; and we addressed all manner of issues related to the management and planning of the sustainable use of Hawaii's public trust resources.

During this time, I applied some key concepts from the great leaders and examples around me, which have worked well:

• "Everybody needs beauty as well as bread, places to play in and pray in, where nature may heal and give strength to body and soul alike."  -John Muir
• Integrate environment, economy, and culture in all decisions.
• Your audience is current and future generations.
• Trust the people you lead.
• Listen and learn from the interested public--empathize.
• Have the courage to remain logical and rational in the face of emotional decision-making.
• Look up, walk around, talk to people.
• People may disagree on how to accomplish something, but they all care about Hawaii, its people, and its natural resources--creative solutions are often found in the latter sentiment.

Finally, Hawaii is a wonderful place because of the people who choose a career in public service, members of the business community who choose to invest in building communities, and residents with a stake in Hawaii's future who contribute to finding solutions to meet our collective challenges.

Mahalo and Aloha!

Transit-Oriented Development Resources

As signs of the Honolulu Rail Transit Project appear on Oahu's landscape, TOD and Honolulu Rail are sure to be topics of discussion in 2015 and beyond.

Rail columns in West Oahu
work their way East.

Here are some resources for your reading pleasure:

• Smart Growth Ideas will Help Guide Transit-Oriented Development. Editorial by by Jesse Souki, Director, Office of Planning, Jan. 28, 2013.
• Hot Topics: Transit Oriented Development.  Presentation by Jesse Souki, Director, Office of Planning, April 17, 2013. 
• Ten Principles for Successful Development Around Transit.  The Urban Land Institute (ULI) prepared this report, which explores the question: What does it take to make TOD work? The principles presented are targeted toward communities, designers, and developers. 
• Leveraging State Agency Involvement in Transit-Oriented Development to Strengthen Hawaii’s Economy.  In 2012, the Office of Planning with the assistance of Smart Growth America prepared this report.  The report recommends ways that Hawaii state agencies can leverage TOD to maximize benefits to the State of Hawaii and, by extension, the people of Hawaii. The recommendations were developed through a series of meetings with representatives from over 40 organizations, including government, private sector, and nonprofit organizations.
• State Owned Parcels Near Rail Stations.  An interactive GIS tool prepared by the State GIS Program.
• City and County of Honolulu's TOD Web Site.  The City is leading the way with TOD planning and creating a space for communities, businesses, and landowners to conceive of a future with rail.
• Transit-Oriented Development USDOT Web Site.  USDOT, Federal Transit Administration, provides definitions and resources at this Web site.
• State Office of Planning TOD Web Site.  This Web site includes various resources related to the state's involvement in TOD.
• Infrastructure Financing Options for Transit-Oriented Development.  This report provides communities with a comprehensive guide of tools and strategies that are available for financing and funding for TOD infrastructure. It provides examples of how some communities are using specific tools for individual infrastructure components, as well as strategies for combining and bundling tools to create plans that address construction phasing and market growth over time.
• Leveraging transit-oriented development for economic growth, better living in Hawaii.  Discussion by Smart Growth America on TOD potential in Hawaii posted on December 28, 2012.
• Report on the State of Physical Infrastructure in Hawaii: Phase II.  This study, prepared by the Hawaii Institute for Public Affairs with support from the US Economic Development Administration, summarizes the statewide economic impacts of significant long-term infrastructure projects over the next 20 years based on location of the projects, including direct and indirect employment, total household revenues (income) generated, tax revenues generated, and total revenues generated into the economy.

For more, visit the archives at TOD and Honolulu Rail.

Can the State Land Use Commission Downzone Property that a Developer does not Develop in a Timely Manner?

The short answer is yes--but it depends.

In DW Aina Le‘a Development, LLC v. Bridge Aina Le‘a, LLC, the Hawaii Supreme Court considered whether the State Land Use Commission properly downzoned 1,060 acres of land slated for a residential project. 

Background.  In 1989, 1,060 acres of land on the Island of Hawaii was reclassified from agricultural to urban to allow for the development of a residential community.  The reclassification was made subject to numerous conditions, including a condition that at least 60 percent of the residential units be affordable.  The Commission granted requests to amend the affordable housing condition for the Aina Le'a project.  (Note: During this period of the Commission's history, it was not uncommon for the Commission to require a 60 percent affordable set-aside for residential developments.  Anecdotally, the Commission reduced the affordable housing requirements for these projects to a more economically feasible set-aside, upon request.)

By 2005, the condition required the landowner, Bridge Aina Le‘a, LLC (Bridge), to set aside 20 percent of the units as affordable.  Because of Bridge's perceived failure to comply with certain conditions, in December 2008, the Commission issued an order to show cause (OSC) why the land should not revert to its former agricultural land use classification.  Soon thereafter, Bridge informed the Commission that it intended to assign its interest in the land to DW Aina Le‘a Development, LLC (DW) through an installment sale. DW subsequently invested more than $20 million in developing the site.  Nevertheless, after proceedings over the course of several years, the Commission issued an order reverting the land to the agricultural use district.

Conceptual Plan
Source: http://www.ainaleaasia.com/our-current-project.html

Boundary Amendment Process and Enforcement.  Under HRS § 205-2, there are four major land use districts in which all lands in the state are placed: urban, rural, agricultural, and conservation.  The counties may further zone lands in the state urban district.  Counties have limited authority to zone in the other districts, except for conservation, where the state regulates exclusively.

Since 95 percent of lands in the state are in the conservation or agricultural district, landowners frequently desire a land use district boundary amendment to allow residential, commercial, and other uses.  HRS § 205-4 generally sets forth the procedures the Commission must follow in amending a district boundary.   The Commission is required to find by a clear preponderance of the evidence that the reclassification is reasonable, not violative of HRS § 205-2 (district classification standards), and consistent with the policies of HRS § 205-16 (compliance with the Hawaii state plan) and HRS § 205-17 (decision-making criteria).

HRS § 205-4(g) gives the Commission broad authority to impose conditions on boundary amendment petitions.  While the Commission can determine whether a condition it imposes is being violated, in general, enforcement of these conditions are left to the counties under HRS § 205-12.  However, a 1990 legislative amendment to HRS § 205-4(g) empowered the Commission "to void a boundary amendment, after giving the landowner the opportunity for a hearing, if the landowner failed to substantially commence use of the land in accordance with its representations."  In other words, under certain circumstances, the Commission may revert or downzone a property to its former state land use boundary classification (e.g., as in this case, from urban back to agricultural).

Holding.  The Court set-forth the following principles for the Commission when it considers reverting a boundary designation to its former classification:

• First, the Commission must issue an Order to Show Cause, which is set-forth in the Commission's rules at HAR § 15-15-93.
• Second, the Commission must determine "whether the petitioner has substantially commenced use of the land in accordance with its representations." 
• Finally, if the answer to the above question is yes, the Commission is required to follow the procedures set forth in HRS § 205-4.  If no, the Commission may revert the land without following the procedures set forth in HRS § 205-4.

Applying the aforementioned principles to the facts of this case, the Court held that the circuit court correctly concluded that the Commission erred in reverting the property to agricultural use without complying with the requirements of HRS § 205-4, because by the time the Commission reverted the property, DW and Bridge had substantially commenced use of the land in accordance with their representations.

The Court reasoned that although there is no definition for "substantially commenced" in the statutes, the intent of the legislature was to "deter speculators who obtained favorable land-use rulings and then sat on the land for speculative purposes."  The Court relied on the circuit court's analysis of this finding, noting that the petitioner had, among other things, continued to actively proceed with preparation of plans and studies, including building plans and studies for the environmental impact statement.  In addition, sixteen townhouses were completed on the property.

Other Holdings.  Although the Court did agree with the circuit court on the substantive portion of the case, it disagreed on three other items worth noting.

First, specific documents that were not before the Commission should have been struck from the record on appeal.  HRS § 91-14 specifically confines an agency appeal to the administrative record.

Second, the Commission did not violate DW and Bridge's constitutional rights to due process and equal protection.  Both Bridge and DW had notice and a meaningful opportunity to be heard before the Commission reverted the property. And, given the circumstances, the Commission's conduct was not “arbitrary and unreasonable.”

Third, Bridge’s and DW’s equal protection rights were not violated because the record does not establish that the LUC lacked a rational basis for its decisions.

Appeals Court Affirms Sufficiency of Environmental Impact Statement Related to Landfill Expansion

Waimanalo Gulch Sanitary Landfill

In short, the City and County of Honolulu decided to expand the size and operation of the Waimanalo Gulch Sanitary Landfill.  Not all in the community supported this effort.  Administrative and judicial challenges to stop the project occurred on several fronts.  This blog entry deals with challenges to the final environmental impact statement (EIS) that was prepared for the project.

In Hanabusa v. Department of Environmental Services of the City and County of Honolulu, ICA No. 30517, May 30, 2014, Plaintiff challenged the project's Final EIS on the following grounds:

1. The Final EIS concealed and failed to adequately address the true nature of the project (primarily as it relates to size); and
2. The Circuit Court erred in failing to address each of the allegations in Plaintiff's complaint regarding the insufficiency of the Final EIS.

The Intermediate Court of Appeals (ICA) disagreed with Plaintiff and affirmed the Circuit Court's judgment in favor of the City.

Notable takeaways from the decision are:

• The argument by Plaintiff that the City promised to close the site by 2008, but instead proposed expanding and continuing use "until capacity . . . is reached" did not have any weight on the ICA's review of the adequacy of the EIS.  
• In practice, there has always been some grey area about the extent to which the Hawaii Environmental Policy Act (HEPA) can tier off of previous environmental documents (like EIS preparers often do for similar NEPA documents).  In this case, the ICA looked favorably on the fact that the EIS referred to previous EIS documents and studies related to the site.
• Plaintiff was barred from raising an EIS challenge to the scope of the Final EIS, because Plaintiff did not raise that issue in Plaintiff's EIS comments.
• When a plaintiff alleges that an EIS does not take a "hard look" at environmental factors, the burden is on the plaintiff to (1) provide significant details or arguments with respect to those claims, or (2) cite persuasive legal authority.

Additional background on this matter can be found in the article entitled, Hawaii Supreme Court Remands Landfill Decision to State Land Use Commission based on Unsubstantiated Closure Date Requirement.

Land Use Law Update Presentation to the Hawaii State Congress of Planning Officials 2013

A survey of significant Hawaii land use and planning legislation, judicial opinions, and land use commission activities in 2013.  These materials supported a lecture on the impacts these developments in the law will have on project proponents, regulators, consultants, and the interested public.

Haw. State Bar Association Presents Federal and State Land Use and Planning Law Update

William S. Richardson School of Law, Professor David Callies, and Director of State Office of Planning, Jesse Souki, will cover recent federal and state case law and legislation affecting land use and planning in Hawaii. Topics will include the recent takings opinion from the US Supreme Court (Koontz v. St. Johns River Water Management District) and state appellate court decisions related to takings, public trust doctrine, and historic preservation.

Date: Thursday, August 29, 2013
Location: HSBA Conference Room
Credits: 1.5 MCPE

Additional Information:

• Program flyer
• In-Person Registration
• Live Webcast Registration

The Three Fundamental Rules of Planning

There's always time for levity. 

In this famous federal district court case involving the environmental impact statement for the H3 Freeway, Chief Judge Samuel P. King wrote: "The court should not be used as a quasi-legislative or quasi-executive forum by those who are dissatisfied with policy decisions made by governing bodies."  

Then in footnote 10, he writes:

One is reminded of the three fundamental rules of planning: 

1. Let's make a park out of the other fellow's lot.
2. Let's tighten up the building restrictions — after I've finished my building.
3. Let's raise the gangplank — now that I've landed.

See Stop H-3 Ass'n v. Lewis, 538 F. Supp. 149 (D. Hawaii 1982).  Timeless wit.

H3 Freeway