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RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW

Annual Hawaii Congress of Planning Officials
Thursday, October 22, 2020 │ 11:30 A.M. – 1:05 P.M.

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RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW

  1. 1. RECENT DEVELOPMENTS IN PLANNING AND LAND USE LAW HAWAII CONGRESS OF PLANNING OFFICIALS THURSDAY, OCTOBER 22, 2020 │ 11:30 A.M. – 1:05 P.M.
  2. 2. Case Law Update 2020 SCOTUS ◦ County of Maui v. Hawaii Wildlife Fund Hawaii Supreme Court ◦ Haynes v. Haas ◦ Lāna‘ians for Sensible Growth v. Land Use Commission Intermediate Court of Appeals ◦ Protect and Preserve Kahoma Ahupua'a Association (PPKAA) v. Maui Planning Commission ◦ Connections New Century Public Charter School (CNCPCS) v. Windward Planning Commission
  3. 3. County of Maui v. Hawaii Wildlife Fund Functional Equivalent of a Direct Discharge County Wastewater Reclamation Partially Treats about 4 million gallons/day injected into 4 wells Travels ½ mile through groundwater Out into the Pacific Ocean The Clean Water Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an EPA permit. Case by Case Analysis Relevant Factors ◦ Time and Distance ◦ Nature of the material through which the pollutant travels ◦ Extent to which the pollutant is diluted or chemically changed as it travels ◦ Amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source ◦ Manner by or area in which the pollutant enters the navigable waters ◦ Degree to which the pollution (at that point) has maintained its specific identity
  4. 4. Haynes v. Haas Duty Not to Maintain a Nuisance Plaintiff was assaulted in Rockstarz parking lot .3 miles away from Allied Self Storage Center Was defendant maintaining a public nuisance—alleged facts: ◦ Use of the storage units for residences ◦ Area was zoned as “General Industrial” ◦ Commercial nature of alleged transaction
  5. 5. Lāna‘ians for Sensible Growth v. Land Use Commission Grammar Matters 1991 LUC Condition No. 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.
  6. 6. PPKAA v. Maui Planning Denial of Intervention Applying MECO Three-Part Standing Test ◦ Potential Actual Injury ◦ Direct personal environmental and aesthetic interests ◦ Adjacent landowners, coupled with their articulated concerns ◦ Fairly Traceable ◦ Threatened injury is fairly traceable to proposed development and issuance of SMA ◦ Favorable Decision ◦ Commission would have provided relief from such injury Due Process based on right to a clean and healthful environment under article XI, section 9 ◦ CZMA is a law relating to environmental quality (MECO & HELCO) Project must be consistent with general and community plans under SMA statute ◦ 201H resolution did not exempt this requirement.
  7. 7. CNCPCS v. Windward Planning Commission Expert Witness vs. Community Concerns Affect on Surrounding Properties ◦ unresolved traffic issues Burden on Public Utilities ◦ not enough water (maybe) Unusual Conditions, Trends, and Needs ◦ location not a criteria Suitability of Land for Agricultural Uses ◦ not a reason to deny The General Plan and other Plans ◦ OK, but why? ◦ Community concerns cannot be a veto
  8. 8. Legislative Update 2020 Act 73, Relating to Waste Management Act 16, Relating to Coastal Management Act 23, Relating to the Environment Act 60, Relating to Agricultural Buildings Act 72, Relating to a School Facilities Agency
  9. 9. Act 73, Relating to Waste Management Amends Conservation District & Solid Waste Management HRS Conservation District ◦ No waste or disposal facility shall be located in a conservation district—except for emergencies lasting no more than 3 years Municipal Solid Waste Landfill Criteria ◦ ½ mile Buffer zone required around MSW or C&D landfills ◦ Applies to new and expansion of existing
  10. 10. Act 16, Relating to Coastal Management Integrating sea level rise considerations into Hawaii’s CZMA Allows Counties to delegate CZMA responsibilities Defines “coastal hazards” (includes SLR) and “beach” Protecting beaches and coastal dunes are added to objectives Extends CZM explicitly to reefs Prohibits construction of private shoreline hardening structures to protect sand beaches Development excludes ◦ Single family residence that is <7,500 sq. ft., “is not situated on a shoreline parcel or a parcel that is impacted by waves, storm surges, high tide, or shoreline erosion,” and not part of a larger development. ◦ Removed final subdivision approval exemption ◦ Nonstructural improvements to existing noncommercial structures Public notice county only
  11. 11. Act 23, Relating to the Environment Eliminates the Use of Coal in Hawaii for Electricity Production After June 30, 2020, the public utilities commission shall not approve: ◦ PPAs that proposes burning or consuming coal to generate electricity ◦ Extensions to the term of coal PPAs or increases to the amount of coal power generation in existing PPAs All coal burning shall cease on December 31, 2022
  12. 12. Act 60, Relating to Agricultural Buildings County Building Inspectors May Inspect Exempt Ag Structures Current Law Provides ◦ Agricultural buildings, ◦ Not used as dwellings or lodging units, and ◦ No more than one thousand square feet in floor area ◦ Exempt from building permit and building code requirements County fire department and county building permitting agency ◦ Right to enter the property to inspect ◦ Reasonable notice ◦ May seek district court warrant if denied access
  13. 13. Act 72, Relating to a School Facilities Agency New Development Arm of DOE Attached Agency to DOE ED/Board Model Responsible for all ◦ Public school development, planning, and CIP construction ◦ Projects assigned by the legislature, governor, or board of education Procurement Applies Contract preference for contractors and subs domiciled in state Power to acquire real property and enter into partnerships Establishes school facilities board

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