Regulatory Planning in Hawai`i: The controls: sticks but no carrots?

Regulatory Planning in Hawai`i:The controls: sticks but no carrots?

Nov 15: This week in G 340

• What are all these handouts about?• Review Exercises (permits cases and County

Charter)• Read Callies chapters 1, 2 and 7• Read Chapter 10 Platt (for 11/17)• What will be the topic of my final paper?• What will be on next exam?

Answer: everything on Hawai`i

Zoning Advantages: see Platt p. 298-99 for synopsis of

Bettman’s classic argument.

Disadvantages/limitations: Typically relate to up-zoning in response to:

a) political influencing (for profit, payoff or favoring of elite interests)

b) need to increase in tax collection.

c) economic development pressures (public or private)

d) can be used to exclude the poor or other “undesirables (Court case: Southern Burlington NAACP v. Township of Mount Laurel 1975)

Statewide “zoning”

• Reasons given for -

See David Callies: Regulating Paradise: Land & Controls in Hawai`i.

Read Callies: Chapters 1 & 2

Does Zoning constitute “Takings?

NO. NOT NORMALLY.

Simple tests of “taking” -Is there significant loss of freedom to use property?• Is there significant reduction in value?• Is there a reasonable connection/nexus between the

anticipated impact of the proposed action and the remedy/penalty imposed?

• See first takings ruling: Pennsylvania Coal v. Mahon 1922 (in Platt p. 296)

Takings: a contemporary conundrumHokuli`a: At what point in the controversy will govt. controls effectively constitute a taking necessitating reimbursement to the property owners?

Takings: Precedent setting cases

• Village of Euclid v. Ambler Realty. 1926• First English Evangelical Lutheran Church v.

County of Los Angeles. 1987• Nollan v. California Coastal Commission. 1987• Lucas v. South Carolina Coastal Council. 1987• Dolan v. City of Tigard. 1994

See Platt Chapter 10

1. Land use district v. land use zone

2. Minimum lot size by district

• Conservation

• Agriculture

• Rural

• Urban

Reviewing land use reg. facts:

Conservation designation

Lands routinely designated conservation …

Conservation Subzones

http://www.hawaii.gov/dlnr/occl/files/Subzones/oahu_subzones.pdf

Agricultural lands

Agricultural lands for sale or for survival?

Fifty percent prime ag lands on `Oahu

Agricultural lands: Problems and issues

• Minumum lot size?

• What is the 15 acre rule?

• How much ag zoned land is needed into the foreseeable future

• Should ag lands not needed for agriculture be put in the rural land use district?

Prohibited use by land-use district

Agriculture, rural or conservation?

1. Conservation

2. Agriculture

3. Rural

4. Urban

Agriculture, conservation, rural?

Who has permitting authority

Which level of government and which agency issues permits for use within:

• Conservation

• Agricultural

• Rural

• Urban

State Owned lands

• Which agency manages State lands?

• What lands typically come under state jurisdiction?

- NARS

- Watershed areas/forests

- Near-shore waters, rivers and streams

- Shoreline areas

Kealakekua Bay: State Marine life conservation district

Preserving shoreline values

Shoreline: definition

“The upper reaches of the wash of the waves, other than storm or seismic waves, at high tide during the season of the year during which highest tide occurs usually evidenced by the edge of the vegetation growth or the upper limit of debris left by the wash of the waves, which has been certified by BLNR”

From Planning Commission Rules (Rule 8)

Which agency has responsibility to manage resources makai of the shoreline?

Shoreline management

1. Which agency establishes the legal shoreline

2. What criteria are used to establish the legal shoreline? (see Rule 8 County Pl. Comm. Rules)

3. What is the dimension of minimum/maximum setback?

4. Which agency manages the shoreline in the Conservation district?

Shoreline management issues:

Shoreline vs. CZM

• Shoreline management is not the same as coastal zone management.

The Statewide CZMA

• Requires establishment of Coastal Zone Management Area for the state.

• Empowers counties to set SMAs (special management areas)

CZM vs. SMA

• What areas of the islands is likely to fall within the Special Management Area of the CZM?

• When are SMA permits required?

- SMA minor permit

- SMA major permit

- Who/which body issues permits

Obtaining permits where to go:

• LUC

• BLNR

• Planning Commission

• Planning Department

• County Council

• Planning Board of Appeals

(How many individuals comprise each group?)

Permit nomenclature

• Conservation district Use Permit (CDUA)

• Special Permit

• Use Permit

• Variances

• Redistricting request/boundary change

• Zoning change/change of zone

• SMA permits

Whose culture is it: planning coming to terms with Hawaiian Traditional values

Precedent setting case:Public Shoreline Access v.Hawaii County Planning Commission

Ensures access to traditional resources cultural or economic as well as protection of other valued aspects of Hawaiian culture existing on the landscape.

Where to look for information

• Planning Commission Rules:

http://www.hawaii county.com/planning/rules/PC%20Rules.pdf

• Planning Department Rules

• County Codes

• Confused or enlightened?

• Questions?