Hawaii Land Use Law

• SCOTUS Hears Oral Arguments in Florida Shoreline Case

  In October, Hawaii Land Use Law previewed Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, wherein the US Supreme Court will consider placing constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines.  The case [...]
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  Posted: December 02, 2009, 1:19am EST
  

• Oral Argument in Shoreline Ownership Case Posted

  In On Appeal, Hawaii Land Use Law previewed Maunalua Beach Ohana v. Hawaii where a shoreline property owner challenged Act 73 (2003).
  
  Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title [...]
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  Posted: December 01, 2009, 1:04am EST
  

• State Publishes RFP for Interisland Wind Project and Interisland Undersea Cable Project Joint State and Federal Environmental Review

  The state recently posted a request for proposals ("RFP") for environmental studies to support the Interisland Wind and Interisland Cable projects.
  
  The Interisland Cable is intended to connect wind facilities on the islands of Molokai and Lanai to Oahu, with a phased expansion to Maui. The Interisland Cable [...]
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  Posted: November 15, 2009, 12:20pm EST
  

• NAR Reports Pending Home Sales Rise for Eight Consecutive Monthly Gains

  The National Association of Realtors (NAR) reported that Pending home sales rose again, marking eight consecutive monthly gains–the longest streak since measurement began in 2001.
  
  NAR's index is released during the first week of each month and is designed to be a leading indicator of housing activity. [...]
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  Posted: November 15, 2009, 11:44am EST
  

• Does Your Project Trigger the Endangered Species Act?

  The Office of Environmental Quality Control (OEQC) recently posted a collection of native and invasive species flash cards on its web site.
  
  According to the Bishop Museum, there are more endangered species per square mile in the Hawaiian islands than any other place on the planet. For example, [...]
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  Posted: November 09, 2009, 1:28am EST
  

• DoD Military Realignment from Okinawa to Guam Creates Opportunities and Challenges

  The Department of Defense (DoD) is finalizing the draft environmental impact statement (DEIS) for the relocation of U.S. military resources from Okinawa to Guam. DoD plans to increase its military presence in Guam from about 15,000 in 2009 to more than 39,000 by 2020 at a cost of more than [...]
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  Posted: November 08, 2009, 11:05am EST
  

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

  Native Hawaiians under the Hawaiian Homes Commission Act won a class-action lawsuit against the State of Hawaii for failing to promptly award home lots. See Craig Gima, Court rules state failed on trust lands, Star Bulletin, Nov. 05, 2009.
  
  According to the Star Bulletin, the lawsuit was filed [...]
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  Posted: November 05, 2009, 3:39pm EST
  

• Seattle Votes to Tax Themselves to Provide more Affordable Housing

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

  Voters responded by overwhelmingly passing an affordable-housing levy, according to the Seattle Times. Details of the levy include: It will cost homeowners about [...]

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  Posted: November 04, 2009, 4:23pm EST
  

• City Allows More Religious Facilities in Industrial District through Zoning Amendment

  Bill 61, which eases the way for more religious facilities in industrial zoned districts on Oahu, was recently signed into law on October 30, 2009.
  
  The Bill amends the Land Use Ordinance by removing the 1,000-foot separation requirement for meeting facilities in the I-1 Limited Industrial District. [...]
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  Posted: November 01, 2009, 7:48am EST
  

• Honolulu Mayor's State of Rail Transit Speech

  Honolulu Mayor Mufi Hannemann made his, "State of Rail Transit," speech on October 29, 2009 at the Mission Memorial Auditorium.  His official speech, in its entirety, can be found at www.honolulu.gov/mayor/stateoftherailtransit102909.pdf.
  
  The project is a 20-mile elevated rail line that will connect West O`ahu with downtown Honolulu and [...]
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  Posted: October 31, 2009, 9:06am EDT
  

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

  Remember the Hawaii Superferry? California seems to be in the same fix, but with a different outcome.
  
  The Superferry attempted to qualify for an agency exemption from Hawaii's environmental review law to avoid preparing an environmental assessment. Then the Hawaii Supreme Court determined that the exemption did not' [...]
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  Posted: October 24, 2009, 12:07pm EDT
  

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

  On October 23, 2009, the Hawaii Board of Land and Natural Resources approved Hawaii Oceanic Technology, Inc.'s ("HOT") conservation district use application for an open ocean yellowfin and bigeye tuna fish farm located 3 miles due west of Malae Point, North Kohala, Island of Hawaii.
  
  According to HOT's [...]
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  Posted: October 24, 2009, 3:48am EDT
  

• New Blawg: California Eminent Domain Report

  California law firm, Nossaman LLP, recently announced the launch of its California Eminent Domain Report blog. Nossaman describes its blog as featuring "original content focusing on industry news, events, and policy impacting eminent domain and valuation issues throughout California." [...]
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  Posted: October 20, 2009, 2:43am EDT
  

• On Appeal

  Two interesting land use cases will be heard by the Hawaii appellate courts in the coming months.
  
  The first case is Unite Here! Local 5 v. City and County of Honolulu. Petitioners Keep the North Shore Country and Sierra Club, Hawai‘i Chapter's application for writ of certiorari, filed September' [...]
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  Posted: October 17, 2009, 7:40am EDT
  

• Annual List of the 100 Best Legal Blogs

  Every December, the American Bar Association (ABA), releases its annual list of the 100 best legal blogs.
  
  If you find this blog useful and/or interesting, please nominate Hawaii Land Use Law & Policy at [www.abajournal.com].
  
  The deadline is Friday, Oct. 2.
  
  Mahalo![...]
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  Posted: September 10, 2009, 12:16pm EDT
  

• Recent Nature Conservancy Study Looks at Clean Energy Sprawl

  Should Hawaii reconsider its energy policy, which seems to focus on biomass and ethanol? Has there been a critical assessment of how particular alternative energy solutions will impact Hawaii's environment?
  
  In a recent article by the Nature Conservancy--McDonald RI, Fargione J, Kiesecker J, Miller WM, Powell J, [...]
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  Posted: August 28, 2009, 2:37am EDT
  

• How Walkable is Your Community?

  Here is a neat web application, Walk Score by Front Seat, a self-described "civic software company and incubator" based in Seattle, Washington.
  
  Point your browser to www.walkscore.com, enter your address, and the site will figure out how walkable your community is from your address. My address [...]
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  Posted: August 27, 2009, 2:47am EDT
  

• An Alternative View in the Ceded Lands Debate

  In October of 2008, the U.S. Supreme Court held that the Apology Resolution does not bar the sale of ceded lands (i.e., lands formerly owned by Hawaii's monarchs). See U.S. Supreme Court Holds that Apology Resolution Does not Bar Sale of Ceded Lands.
  
  Such a case allows' [...]
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  Posted: August 26, 2009, 4:52pm EDT
  

• Oahu Bike Plan Available for Public Review

  The Department of Transportation Services, City and County of Honolulu, has completed a Public Review Draft of the Oahu Bike Plan, July 2009.
  
  The Plan provides policy and program recommendations and identifies an integrated network of on-road bike lanes and routes and off-road paths that link people to [...]
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  Posted: July 31, 2009, 4:44pm EDT
  

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

  The American Public Transportation Association (APTA) recently sponsored the CQ Forum on Climate Change Policy and Transportation
  
  According to APTA President William Millar, public transportation saves 37 million metric tons of carbon annually, as well as 4.2 billion gallons of gasoline. Sen. Benjamin L. Cardin (D-Md.), spoke about [...]
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  Posted: July 25, 2009, 4:12pm EDT
  

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

  On October 2, 2008, a Kauai judge issued an order ("2008 Order") which allows a developer, Joseph Brescia, to continue building a house over six Hawaiian burial sites. Brescia was granted the required land use entitlements and permits by the County of Kauai to build a 2,300 square foot residence. [...]
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  Posted: July 24, 2009, 5:32pm EDT
  

• Economic Conditions Increase Claims to Rescind Real Estate Puchase Contracts

  Here's an interesting topical CLE by the ABA: "The Land Sales Battle: Sellers and Purchasers Spar Over the Interstate Land Sales Full Disclosure Act."
  
  According to the CLE's promotional email: "As the economy has worsened, a tremendous number of claims to rescind purchase contracts have been filed in" [...]
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  Posted: July 22, 2009, 2:37am EDT
  

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

  The State Land Use Commission will hold public hearings on its proposed rule changes on August 17, 2009, pursuant to rule-making requirements under HRS Chapter 91.
  
  The proposed rules are posted at the Commission's web site at luc.state.hi.us/admin_rules.htm.
  
  The Commission is responsible for, among other things,' [...]
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  Posted: July 17, 2009, 2:20am EDT
  

• Hawaii Supreme Court Ruling Closes Kaimana Beach Surf School

  In January 2009, I wrote about Hans Hedemann Surf School, which is located on the ground floor in a space called “Shop #7” of the New Otani Kaimana Beach Hotel. See Mitigation Allows Surf School to Continue as Nonconforming Use.
  
  Certain groups, including Save Diamond Head Waters, LLC [...]
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  Posted: July 17, 2009, 3:13pm EDT
  

• Slump in Timeshare Market May Pull Down Hotel/Resort Profits

  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' [...]
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  Posted: July 08, 2009, 2:13am EDT
  

• Maui Developer Proposes 660 Affordable Homes for Maui Project

  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' [...]
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  Posted: July 07, 2009, 4:32am EDT
  

• Wind Could Generate 40 Times Current Worldwide Consumption of Electricity

  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 [...]
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  Posted: June 27, 2009, 6:21am EDT
  

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

  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 [...]
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  Posted: June 25, 2009, 4:05am EDT
  

• Maui County Council Proposes Anti-Mixed Use Zoning Bills

  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" [...]
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  Posted: June 22, 2009, 5:00pm EDT
  

• HUD, DOT and EPA Partner Up for Sustainable Communities

  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 [...]
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  Posted: June 22, 2009, 4:20pm EDT
  

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

  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' [...]
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  Posted: June 03, 2009, 2:27am EDT
  

• More Unrest at the Environmental Council

  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' [...]
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  Posted: June 02, 2009, 2:07am EDT
  

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

  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' [...]
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  Posted: June 01, 2009, 2:36am EDT
  

• Guest Contributors

  Hawaii Land Use Law & Policy ("HLUP") welcomes submissions subject to the following considerations:
  
  (1) Submissions should be consistent with the title and purpose of HLUP (both posted on HLUP's title page).
  
  (2) Your submission should fall within one of the "Entries by Subject" (also listed on' [...]
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  Posted: May 31, 2009, 6:37pm EDT
  

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

  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' [...]
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  Posted: May 30, 2009, 4:38pm EDT
  

• Appellate Court Issues Opinion in Turtle Bay EIS Case

  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' [...]
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  Posted: May 22, 2009, 10:56am EDT
  

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

  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 [...]
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  Posted: May 02, 2009, 9:37am EDT
  

• Lanai City Listed as Endangered Historic Place

  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, [...]
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  Posted: April 30, 2009, 5:24pm EDT
  

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

  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 [...]
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  Posted: April 29, 2009, 5:34pm EDT
  

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

  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, [...]
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  Posted: April 28, 2009, 3:16am EDT
  

• Kona Company Seeks to Turn Macadamia Nut Shells into Carbon

  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' [...]
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  Posted: April 28, 2009, 8:12pm EDT
  

• Maui Wind Energy Producer Proposes Expansion

  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 [...]
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  Posted: April 28, 2009, 7:08pm EDT
  

• Historic Decision at the Land Use Commission; First IAL Designation

  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 [...]
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  Posted: April 21, 2009, 4:54pm EDT
  

• Life After Molokai Ranch

  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, [...]
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  Posted: April 19, 2009, 12:46pm EDT
  

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

  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 [...]
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  Posted: April 11, 2009, 10:15am EDT
  

• Reappointment of LUC Commissioners; Environmental Council Member Resigns Under Protest

  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 [...]
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  Posted: April 11, 2009, 4:18pm EDT
  

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

  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 [...]
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  Posted: April 11, 2009, 2:44pm EDT
  

• Hawaii Legislative Update: First Crossover

  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. [...]

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  Posted: April 01, 2009, 2:23am EDT
  

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

  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' [...]
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  Posted: March 31, 2009, 3:11am EDT
  

• “If it hasn’t come out of the ground, it’s probably on hold.”

  The March 2009 edition of Hawaii Business Magazine reports on the state of development in Hawaii in Arrested Development, by Dennis Hollier.
  The title of this blog is a quote from Stanford Carr, a Hawaii developer who summed up the state of the market. The article makes a [...]
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  Posted: March 25, 2009, 3:00am EDT