Transcript Regulatory Planning in Hawai`i

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 upzoning 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 conundrum
Hokuli`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
Reviewing land use reg. facts:
1. Land use district v. land use zone
2.
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Minimum lot size by district
Conservation
Agriculture
Rural
Urban
Conservation designation
Lands routinely
designated
conservation …
Conservation Subzones
http://www.hawaii.gov/dlnr/occl/files/Subzon
es/oahu_subzones.pdf
Agricultural lands
Fifty percent prime ag lands on
`Oahu
Agricultural lands for sale or for survival?
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
1.
2.
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4.
Conservation
Agriculture
Rural
Urban
Agriculture, conservation, rural?
Agriculture, rural or conservation?
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
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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?