Regulating Paradise: Land Use Controls in Hawai'i 9780824887544

Citation preview

REGULATING PARADISE

MONEY BLOWING OUT TO SEA

Regulating Paradise LAND USE CONTROLS IN HAWAII

DAVID L .

•

CALLIES

University of Hawaii Press / Honolulu

©

1 9 8 4 U N I V E R S I T Y OF H A W A I I P R E S S

A L L RIGHTS RESERVED M A N U F A C T U R E D IN T H E U N I T E D S T A T E S OF A M E R I C A

Early research support for this project was provided by matching federal and state funds from the U.S. Department of Housing and Urban Development and the State of Hawaii Department of Planning and Economic Development through the Federal Comprehensive Planning Assistance Program. Library of Congress Cataloging in Publication Data Callies, David L., 1943Regulating paradise. Bibliography: p. Includes index. 1. Land use—Law and legislation—Hawaii. I. Title. KFH458.C35 1984 346.96904'5 84-8718 ISBN 0-8248-0891-6 349.690645

Contents

Acknowledgments

vii

CHAPTER

I

Introduction

1

CHAPTER

2

State Land Use Controls: Acts 187 and 100

6

CHAPTER

3

Local Planning and Zoning

21

CHAPTER

4

Subdivisions

54

CHAPTER

5

Redevelopment

CHAPTER

6

Historic Preservation: Recapturing

CHAPTER

7

Managing the Coastal Zone

CHAPTER

8

Flood Hazards and Floodplains

104

CHAPTER

9

NEPA and SEPA: Form Over Substance

120

CHAPTER

10

Clean Air: A Hawaiian Monopoly?

130

CHAPTER

11

Clean Water

141

CHAPTER

12

Public Lands: The Impact of State and Federal Management and Disposal

153

Regulating Paradise: Is Land Use a Right or a Privilege?

163

Notes

177

Bibliography

219

Index

241

CHAPTER

13

and Housing: Virtues in Conflict? the Past

60 73 87

Acknowledgments

A book on Hawaii land use law has been a goal of mine since I came to the islands in 1978. However, a goal it would have remained if not for the receptive attitude—indeed encouragement—that I received from the State Department of Planning and Economic Development, which provided substantial funding for research. I am particularly indebted to Hideto Kono, the former director of the department, and to Shoji Kato, head of the Planning Division, for their encouragement; to Richard Poirier, chief of the Long Range Planning Branch, for the initial idea; and to Ah Sung Leong and Charles Carole for their unfailing patience and good will throughout the research and early drafting process. To Dean Richard Miller of the University of Hawaii law school and former dean Marvin Anderson, my thanks for giving me the time and research assistance to turn the drafts into a book. Early drafts would have been virtually impossible to complete without the indefatigable efforts and unflagging enthusiasm of my two principal research assistants, Karl Kobayashi and Patrick Ribellia, and the close checking and proofing of Randy Sing, who joined us somewhat later. All are now practicing lawyers in Honolulu. Major research contributions, for which I am grateful, were also made by Rosemary McShane and by Dorothy Tom, Sheryl Miyahira Nicholson, and Cheryl Kakazu, whose independent research projects contributed significantly to the shaping of certain chapters. Particular thanks go to my research assistant and law student Beth Kent, who sacrificed many weekends and holidays in 1983 checking notes and bibliographic references. Many busy people in the academic, government, and business communities generously consented to read and comment upon various chapter drafts. While they are in no way responsible for the contents, I am grateful for their contributions (and corrections):

Vili

Acknowledgments

On Oahu:

On On On On

Hawaii: Kauai: Maui: the mainland:

Robert Jones, Mike McElroy, Richard Poirier, Ralph Ukishima, G. Kem Lowry, Jackie Parnell, Ralston Nagata, Aaron Levine, Don Bremner, Rick Scudder, James Detor; Ben Tsuzaki, Duane Kanuha, Sidney Fuke; Brian Nishimoto and Stephen Belles; Tosh Ishikawa and Lee Ohigashi; Fred Bosselman, Kit Armstrong, Richard Liroff, and Dale Peterson.

I also owe a big debt of gratitude to my secretary, Dora Yamada, who typed draft after draft (often correcting my spelling and grammatical errors in the process) and to the rest of the faculty secretarial staff of the Law School—Jane Takata, Frieda Honda, and Helen Shikina, who pitched in again and again when the burden on Dora, who is also responsible for two of my patient colleagues, became too great. Finally, my thanks to, and praise for, my editor, Damaris Kirchhofer, whose patience, good humor and, above all, incisive comments and suggestions over the past three years are responsible not only for shaping the book but also for what is comprehensible in it. To all of you—Mahalo!

1

Introduction Ua Mau Ke E a O Ka 'Äina I Ka Pono—The Life of the Land is Perpetuated in Righteousness. Hawaii State Motto

The use of land in Hawaii is intensely regulated. A partial listing of major permits required for residential and resort development alone, compiled in 1977 under the state Coastal Zone Management Program, runs to some seventy-five pages. An overlapping environmental permit index, attached as an appendix, contains literally hundreds of entries. These regulations are applied at both the county and state level, often with substantial federal encouragement. They apply to every aspect of the land use and development process, on virtually every square foot of beach, mountain, plateau, and valley, whether public or private, whether resort or residential, agricultural or urban. Commenced in order to bring order and sense to the use and development of that most precious of island commodities—land—the regulation of land use has become an enormously complex process, often equally frustrating to the public and private sectors alike. The Evolution of Land Use Controls in Hawaii The preoccupation with land management in Hawaii goes well back in history, arguably dating from the semifeudal relationship of certain of Hawaii's monarchs with their chief nobles (ali'i) to whom they parcelled out land in units called ahupuaa, which usually extended from the uplands to the sea.1 Thus, the roots of the statewide regulatory system are historical, which does much to explain the relatively easy acceptance of a strong regulatory regime without significant legal challenge: management and disposal policies existed before a modern system of public land policy evolved. Indeed, this public land policy began to emerge shortly after what has been described as the chaotic conditions following the virtual destruction of ancient Hawaiian social and economic patterns in the middle of the nineteenth century.2 This culminated—officially at least—in the mahele or division of 1848, also known as the Great Mahele. Between 240 and 250 owners (konohiki) met with

2

CHAPTER I

King Kamehameha to divide their lands formally into two groups: those belonging to the king and those belonging to the chiefs. The division was recorded in a Mahele Book between January 27 and March 7, 1848. By this process, the king obtained rights to about half the land in Hawaii, which he immediately separated further into crown lands—his own—and land for the government (to the chiefs and the people) to be controlled by the legislature. The chiefs obtained title to land that the Mahele set aside for them by filing an appropriate claim with a land commission. Therefore, at the conclusion of the Mahele, land in Hawaii was assigned—but not necessarily owned—to three groups: the royal family (crown lands), the government, and the chiefs. In theory, each group's land was divided subject to the rights of those common people who were tenants thereon. However, unfamiliarity with European concepts of land ownership, lack of concern, and lack of understanding resulted in the loss of many of these rights in a few short years. 3 In an attempt to establish a more equitable pattern of landholding, several acts were passed both before and after Hawaii became a territory of the United States in 1898, to encourage "homesteading." Although a few hundred people did acquire family farm-sized tracts, the increasingly entrenched position of the large landholders remained largely unchanged, 4 thereby perpetuating the centralized character of land management, but with different "managers." The fact that land management (though not necessarily ownership) had passed to a "foreign" oligarchy from a native one in the space of a few decades is significant, but not from the perspective of a land use management framework. 5 The centralizing influence remains, reinforced by the fact that government also has been highly centralized throughout much of Hawaii's history.8 In theory it was possible for this pattern to have been broken by federal land disposal policies once Hawaii became a territority if the early attempts at "homesteading" had been continued by the federal government. They were not. Nearly 2 million acres, Hawaii's public lands, were ceded to the U.S. government, much of it quickly set aside for military purposes.7 This simply increased the tendency toward centralization of land management, despite sporadic attempts by both the federal government and a succession of governors in the first quarter of the twentieth century to resuscitate homesteading. 8 The result was a climate that heavily favored central land use management and control at the public sector level, which, in the middle decade of the twentieth century, is just what occurred. In the years preceding 1961, when the Hawaii State Land Use Law was passed, both the private landholding oligarchy and the centralized

Introduction

3

state government's interests converged out of concern for the threat to agricultural land, the mainstay of the major private interests and the single most important factor in the Hawaiian economy.9 Hawaii's economic "boom" was beginning, along with land speculation and development. Apparently the state's four counties were unequal to the task of dealing with the problems generated by this rapid economic growth, having very little planning experience and almost no land use controls. 10 The stage was thus set for the passage of Hawaii's landmark land use law, which resulted in the "zoning of Hawaii" by a state agency in order to contain sprawl and preserve agricultural land. 11 It is this law and its progeny upon which most commentators have chosen to dwell. This is but the tip of the iceberg, however. In common with many mainland jurisdictions, Hawaii now labors under a plethora of local as well as additional state regulations that affect the use of land, both public and private. Both traditional and unique zoning and subdivision schemes with multiple permits and conditions, all tied to tiers of local plans, vie for prominence with a host of regulations and standards issued pursuant to a number of relatively recent federal statutes that, directly or indirectly, further restrict the use of land. Not nearly so widely publicized are the steadily increasing power and authority of Hawaii's counties—and in particular Honolulu—in the area of land use planning and control. The result is a very comprehensive and detailed set of land use controls. Indeed, as the counties and their planning and zoning departments have grown in experience, skill, and size, and as their plans and ordinances have become more sophisticated, the role of the state in land use decision making not clearly involving a statewide interest is steadily diminishing, and land use decisions are more nearly resembling the regional regulatory patterns of developed states on the mainland. The islandwide jurisdiction of each of Hawaii's four counties, together with the absence of any smaller units of local government, effectively prevents local decision making from becoming too parochial.

The Scope of This Book The following chapters survey the range of state, local, and federal laws that regulate the use of land in Hawaii, with emphasis on the major philosophy and themes that underlie and permeate each level and type of land use control, together with their interrelationship. The workings of each system have been described in sufficient detail so that those with both long and little exposure to the land use management process should find it useful.

4

CHAPTER I

State and local regulation is described first. Hawaii's statewide land use law and the state plans that now guide its implementation set the basic land use patterns for both private and public land in Hawaii. They also provide the context for county land use regulation, since only in one of the state's four land use classifications may the counties exercise traditional local zoning and subdivision powers. All four counties have local land use powers and vigorously exercise them not only through traditional zoning districts but also through a host of special and mixed uses and districts, some of which "overlay" traditional districts for historic, conservation, or aesthetic purposes. How these affect traditional private development "rights" is an increasingly important issue. So is the relationship of proliferating county plans to the traditional local land control ordinances. As the problems of land management in a developing state grow in complexity, so do the relationship of traditional land use controls with other related or special-purpose laws. Hawaii has its share with specific state and local laws to protect historic sites and the natural environment. Aside from local responses to federal programs with the same goals, Hawaii has its own set of historic preservation and environmental impact assessment laws directed at review—but not always preservation—of historic and natural areas threatened with development. Special laws are also directed at social issues such as the elimination of blight, the redevelopment of commercial areas, and the provision of reasonably priced housing. 12 The effect of land use laws on environmental laws in the state is evident from the many land use features of Hawaii's response to the environmentally sensitive federal programs of the 1960s and 1970s. Of major importance to an island state are the federal coastal zone and flood hazard protection programs and the way they have been integrated into state and local land use controls. Following closely in importance are the plans and regulations required by federal clean air and clean water laws and their effects on the siting of commercial, industrial, and large residential developments. This is particularly true of the clean water program and its emphasis on wastewater treatment facility connections and limitations on wastewater disposal over or near underground water supplies like those in Hawaii. Finally, in states like Hawaii the federal government makes its presence felt through its land ownership, use, and disposal policies as well. The unique historic posture of Hawaii's "ceded lands" continues to affect how, when, and to whom the federal government "disposes" of certain of its holdings, while it and other sizable tracts are largely exempt from local and state land use regulation unless there are signifi-

Introduction

5

cant spillover consequences on adjacent land. Nowhere is federal land policy more an issue than over use and disposal in critical urban areas like Waikiki where desirable oceanfront land is sought for development by the private sector and for park or open space by the pubiic. The theme throughout this book, then, is the effect of this profusion of land use regulation on the use of land. To this we now turn.

2 State Land Use Controls: Acts 187 and 100 A "Quiet Revolution" in land use control, which began in Hawaii, has seen the increasing assumption of land use control powers at the state level. Mandelker and Kolis, "Whither Hawaii?"

Hawaii's Land Use Law (Act 187) is one of the most analyzed, summarized, eulogized, and criticized statutes in the country. Islander, mainlander, visitor—all have taken a crack at explaining its meaning, extolling its virtues, and deploring its shortcomings. 1 The law and its later (1978) complement, the Hawaii State Plan (Act 100), need little explanation in land use conscious Hawaii. Nevertheless some interesting aspects of the two laws have surfaced that are not so widely perceived. Principal among them is the increasingly direct relationship of planning to zoning and other land use controls as a result of the elevation of some of Hawaii's plans to laws. Another is the conformance issue: to what extent must traditional state and county land use regulations conform to this new breed of plans/laws? What follows is a brief history and description of the state land use laws and an analysis of these issues.

The Land Use Law: Hawaii Zones the State The major government mechanisms for influencing the location of development in Hawaii are the State Land Use Law, the location of state and county public facilities, state and county tax policies, state and county land use plans and policies, and county zoning ordinances. Among these mechanisms, the most important is the State Land Use Law. 2

Several factors contributed to the passage of the State Land Use Law in 1961. 3 Probably most important was the need to preserve prime agricultural land, especially on Oahu. 4 The increased pace of development together with the limited supply of prime agricultural land when agriculture was still a mainstay of the state's economy were a major impetus behind the "revolutionary" law. 5 These concerns were reflected in the

State Land Use Controls

7

purpose clause of the Act. Also of critical importance was the change in the political control of the state in the mid-1950s. The largely Republican territorial legislature, representing the major landowners, was replaced with Democrats intent upon land reforms that would not only preserve agricultural land but also increase economic development. 6 Finally, the burgeoning state plan movement, which culminated nearly two decades later in Act 100, had a significant impact, even though the Act itself had no formal land use plan for its basis. The increased importance of a statewide approach to land use problems, coupled with a strong central government tradition favoring such an approach, did much to shape the law as it eventually emerged. 7 The state system of regulation adopted in 1961 consists largely of local zoning writ large. Act 187 directs that all the land in Hawaii be divided into districts: urban, agricultural, and conservation. The little-used rural classification was added to the law by amendment in 1963. The drawing up of land use district boundaries was completed in 1964 by a Land Use Commission, also created by the Act. Land use control in two of the districts—agricultural and rural—was split between state and local government agencies. In the conservation district only the state controls the use of land. It is only in the urban district that Hawaii's four county governments exercise traditional local land use controls. T H E DISTRICTS

Hawaii's land area is divided into the four district classifications roughly as follows: urban, 5 percent; agriculture, 47 percent; conservation, 47 percent; and rural, 1 percent. 8 In the urban districts are those lands that are currently in urban use, together with a reserve for foreseeable urban growth. This classification is only permissive, however, and carries no right to urban use. It is the county that issues the requisite permit for development, the principal requirement for which is appropriate county zoning. Counties can and do zone land that the state has classified as urban for low-intensity use. All the state urban classification signifies is that a county may zone the same land so as to permit urban development under its zoning code. The administrative rules of the Land Use Commission amplify these statutory provisions. For example, in determining what lands should be classified urban, the rules provide that the urban districts should include land characterized by citylike concentrations of people. Other factors the commission must consider: proximity to centers of trade, economic feasibility, proximity to basic services, and reserve for growth "based on 10-year projections." It is also to give more consideration to lands already contiguous to existing urban areas, although it "shall" also

8

CHAPTER 2

include lands in appropriate locations for new urban concentrations as shown on state and county general plans. It is specifically prohibited from including in an urban district lands the urbanization of which would contribute to scattered spot urban development, "necessitating unreasonable investment in public supportive services."9 The agricultural districts include land used not only for agricultural purposes, such as cultivation of crops and grazing, but also for a range of related uses, such as public or private open-space recreation (picnic grounds and riding stables) and processing facilities such as sugar mills. The Land Use Commission's standards for classifying land in the agricultural district are relatively predictable. Land with a high capacity for agricultural production and grazing "shall" be included, and those lands surrounded by or contiguous to agricultural lands "may" be, even if not suited for such use for topographical or geological reasons. On the other hand, lands either in or with a high capacity for intensive agricultural use are not to be reclassified unless it: "(1) will not substantially impair actual or potential agricultural production in the vicinity of such lands, and/or (2) is reasonably necessary for urban growth." 10 The list of permissible uses is extensive. Besides traditional agricultural uses such as the cultivation of crops, the raising of all manner of animals, and farm buildings (including roadside produce stands), the commission also permits by regulation day camps, picnic grounds, transformer stations, agricultural parks, and accessory mills and agricultural processing facilities. 11 Other uses are permitted in the agricultural district by special permit, issued by a county alone if the land for which the permit is sought is less than fifteen acres in size or in conjunction with the commission if it is more. 12 In the latter case, permission for special use must first be obtained from the appropriate county planning commission in accordance with the county's procedures for processing special use applications. Specific conditions adopted by the county planning commission are usually approved by the Land Use Commission if it then chooses to approve the permit application. Moreover, the commission may add its own further restrictions, "including adherence to representation made by the applicant." 13 The Land Use Commission requires that all such special uses be established as "unusual and reasonable," however, and has promulgated guidelines to establish such qualities, among the most important of which are: 1. That the desired use would not adversely affect surrounding property.

State Land Use Controls

9

2. Such use would not unreasonably burden public agencies to provide roads and streets, sewers, water, drainage and school improvements, and police and fire protection. 3. Unusual conditions, trends, and needs have arisen since the district boundaries and regulations were established. 4. That the land upon which the proposed use is sought is unsuited for the uses permitted within the District. 14 The granting of special uses in agricultural districts has been particularly controversial in Hawaii. Frequently, permits for uses that appear to be distinctly unrelated to agriculture have been both sought and approved. In 1982, however, Hawaii's Supreme Court struck down a special permit for a 180-acre theme park in an agricultural district near Kahe Point on Oahu on the ground that such a use was incompatible with the purpose and land use of such districts.15 Presumably the commission will in future consider such large, urban uses only as district reclassifications.16 The conservation district contains much public as well as a substantial amount of private land. Land included in the conservation district is primarily park, watershed, floodplain (coastal and stream), wildlife reserve, historic/scenic sites, mountains, and offshore outlying islands.17 The use of land in this district is controlled by the Board of the State Department of Land and Natural Resources (DLNR), known as the Land Board or BLNR, and it is the permits granted by the Land Board that often is the most controversial aspect of conservation district land management. The Land Board has by regulation divided conservation district lands into four forest and water reserve subzones. 1. Protective: restricted watersheds, plant and animal sanctuaries, and significant historical and geographic features. 2. Limited: when natural conditions "suggest" constraints. 3. Resource: sustained use of natural resources to be harvested (timber, future parklands). 4. General: open space where urban development would be "premature."18 What is or is not permitted within these zones is determined by individual application to the Land Board, which has discretion within its rules and statutory mandate to grant or deny such applications. 19 Finally, a tiny percentage of Hawaii's lands (mostly on Maui and Kauai) is classified in the rural district. The commission creates such

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CHAPTER 2

districts principally for small farms and rural subdivisions that would be inappropriate in either the agricultural or urban districts.20 Special permits and other overall regulation for these lands are, like agricultural district lands, in the hands of the Land Use Commission. T H E PROCESS OF DISTRICT CLASSIFICATION AND BOUNDARY AMENDMENTS

The Land Use Commission consists of nine private-citizen members, at least one each of whom must come from each of Hawaii's four counties. As noted above, the commission is responsible for most of the original land use district boundaries and all subsequent ones. Originally required to undertake a district boundary review every five years, the commission now acts almost exclusively on landowners' petitions for reclassifications, called boundary changes, a process roughly comparable to the county rezoning process. The elimination of the five-year boundary review requirement in 1975 deprived Hawaii not only of a reasonably complete and potentially thorough overview of its land use policy but also of a useful and well-documented publication every five years that served as both a summary and point of departure for shortterm land use decision making.21 The void may be filled by the reporting requirements of the State Plan (discussed later in this chapter). The Land Use Commission is not free to modify boundaries as it pleases, however. While it had a relatively free hand with respect to boundary amendments during the first decade under Act 187, both the Hawaii Supreme Court and the legislature were instrumental in circumscribing its policy role and restricting it to contested case procedures in making such changes in accordance with strict administrative procedures.22 The Courts and the Land Use Commission There has never been a direct challenge to the authority of the Land Use Commission to exercise its boundary classification powers under the Land Use Law. The cases before the Hawaii Supreme Court have focused primarily on procedural matters but with far-reaching implications. The manner in which the commission made boundary changes was subject to considerable public criticism, however, finally resulting in 1974 in the landmark case of Town v. Land Use Commission.23 Not only did the case decide the character of boundary amendments (whether legislative or quasi-judicial), but in light of recent decisions elsewhere, it may have inadvertently decided whether such boundary amendments will ever be subject to binding initiative and referendum as well.

State Land Use Controls

il

The case arose out of Michael Town's objection to the commission's delay in deciding a boundary amendment application from agricultural to rural that affected his property and to its taking of testimony from the applicant out of his presence.24 The delay was contrary to specific regulatory language requiring the commission to render a decision within forty-five to ninety days of a required hearing. 25 The taking of testimony out of Town's presence was contrary to the requirements of the Hawaii Administration Procedure Act (HAPA).26 The commission's position was that a petitioner could waive the right to a decision within the time period and that HAPA requirements were inapplicable because boundary amendments constituted "rule making" rather than a "contested case," (a legitimate dispute between parties to which both administrative procedure acts and initiative/referenda are inapplicable). 27 The court disagreed on both points. The matter of delay was dealt with speedily. The court noted there was no provision for varying the time period; the language of the statute was clear. To hold otherwise put objectors (like Town) "in a state of limbo at the discretion of the applicant." Allowing a petitioner to pick and choose the Land Use Commission meeting at which his petition would be decided placed such an objector in an "impossible" position.28 Potentially more far-reaching was the characterization of the boundary amendment process as quasi-judicial rather than quasi-legislative. The court said: . . . the adoption of district boundaries classifying lands into conservation, agricultural, rural or urban districts, or the amendment to said district boundaries . . . is not rule making or quasi-legislative, but is adjudicative of legal rights of property interests in that it calls for the interpretation of facts applied to rules that have already been promulgated by the legislature. We are of the opinion that the instant case is a "contested case." . . , 29

It is the characterization of boundary amendments as quasi-judicial that is critical. Indeed, by including in this ruling "any action taken on the petition for boundary change," even initial classifications and changes, regardless of size, the court may have cast too wide a net. For decades standard local zoning theory held that such "map" amendments were legislative in character, which made them subject to initiative and referendum where such procedures were available. 30 But neither initiative nor referendum are available for the review of a quasijudicial decision, by whatever manner or agency made, on the ground that the general public has no legitimate interest in the outcome of a contested case.31 Under this theory, then, the court has virtually insu-

12

CHAPTER 2

lated all commission decisions on boundary changes from initiative and referendum, especially in the absence of a five-year review of boundaries upon which a series of boundary amendments could be based. Should they be so exempt? It is, one would expect, perfectly reasonable to insulate as contested cases those decisions involving land areas so small that no one but the immediate parties should be concerned. But what of major boundary changes? Can it really be said that a reclassification of, for example, upward of a hundred acres for an industrial park, a college campus, or a new community is merely a contested case, between applicant and objectors? It is likely the court did not have in mind such a situation when it rendered its decision in Town. In any event, the implications for initiative and referendum in Hawaii are so far conjectural. Hawaii does not presently have initiative or referendum at the state level, although the possibility has been considered. 32 More recently, in a case heard in 1982, the Hawaii Supreme Court held that the reclassification of land from the conservation district to some other use requires an environmental assessment under the Hawaii Environmental Impact Statement (HEIS) law. 33 While HEIS does clearly require such an assessment for anyone proposing any use within "any land classified as Conservation District by the state land use commission," it is difficult to see how that provision applies to a reclassification, especially since, as two justices pointed out, the legislature expressly rejected language in early drafts of HEIS that would have subjected reclassifications or boundary amendments to such a process.34 In sum, Hawaii's courts, while never squarely deciding on the legitimacy of Act 187, have decided that boundary reclassifications are always quasi-judicial decisions, and by implication referendum-proof.

Act 100: The State Plan as Law Hawaii is unique among the fifty states in having converted its state general plan into a law—Act 100—which made it the first state to enact a comprehensive state plan. The writing of the plan into the statutory code had the effect of transforming what is usually a policy document into a set of preeminent legal requirements. Its passage by the Ninth State Legislature in 1978 represented not only a milestone for the state —indeed, the governor ranked it second only to the State Constitution in importance—but also for the nation. 35 Moreover, an amendment to the State Land Use Law concerning Land Use Commission standards for deciding boundary amendments applications providing that no such amendment could be adopted unless it conforms to the State Plan adds considerably to the plan's legal significance in Hawaii. 36

State Land Use Controls

13

T H E STATE PLAN

The culmination of efforts begun in 1975, the State Plan is the product of three years of intense work by the Department of Planning and Economic Development (DPED) that included an inventory of goals, objectives, and policies; a statewide household survey; technical studies; issue papers; public workshops and hearings; the creation of a policy council; and intense lobbying in the legislature. Its major areas of concentration were: population; the economy (tourism, defense and other federal spending, the sugar and pineapple industries, diversified agriculture, and potential new areas like motion picture production); the physical environment; facility systems (water supply, transportation, energy, public utility facilities, solid and liquid waste disposal); and socio-cultural advancement (housing, health, education, social services, leisure activities, public safety, and cultural heritage). 37 The Hawaii State Plan is divided into three major parts: goals, objectives, and policies; planning implementation and coordination; and priority guidelines. 38 The Findings and Purposes statement of the Act sets out the rationale for the plan: The Legislature finds that there is a need to improve the planning process in this State, to increase the effectiveness of public and private actions, to improve coordination among different agencies and levels of government, to provide for wise use of Hawaii's resources and to guide the future development of the State. 39

Paralleling the studies that went into the process to develop the State Plan, the goals are divided into the areas of the economy; the physical environment; and physical, social, and economic well-being. 40 Thus, for example, a principal goal is "A desired physical environment, characterized by beauty, cleanliness, quiet, stable natural systems, and uniqueness, that enhances the mental and physical well-being of the people." 41 The plan's objectives, then, reflect "end-states toward which concentrated effort is focused," a step toward a related goal. 42 An example of an objective related to the above goal is: "Planning for the State's physical environment shall be directed towards achievement of the objective of enhancement of Hawaii's scenic assets, natural beauty, and multi-cultural/historical resources."43 Policies outline the ways in which the objectives are to be achieved. A policy related to the above objective is: To achieve the scenic, natural beauty, and historic resources objective, it shall be the policy of this State to:

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1. Promote the preservation and restoration of significant natural and historic resources. 2. Provide incentives to maintain and enchance historic, cultural, and scenic amenities. 3. Promote the visual and aesthetic enjoyment of mountains, ocean vistas, scenic landscapes, and other natural features. 4. Protect those special areas, structures, and elements that are an integral and functional part of Hawaii's ethnic and cultural heritage. 5. Encourage the design of developments and activities that complement the natural beauty of the islands. 44

The all-important implementation strategy is accomplished through several mechanisms. A policy council of state, county, and public representatives was established to advise the legislature and reconcile conflicts between the agencies and plans described below. DPED provides technical assistance to the policy council, in particular performing statewide policy analysis and review recommendations on all state plan matters. Twelve state functional plans, ten of which were adopted in 1984, are to define, implement, and conform to the themes, goals, objectives, policies, and priority guidelines of the State Plan. County plans (general and development) are to be county-specific, but must at least indicate general population levels and development patterns and conform to the aforesaid themes, goals, policies, objectives, and priority guidelines. State programs are to carry out the State Plan and must conform both to it and to the functional plans as well. The county and functional planning processes are coordinated with the end product, based one upon the other in the implementation of the State Plan. An annual review to assess progress as well as a quadrennial review of the policies, goals, and objectives are required. 45 Finally, priority guidelines are set forth to provide immediate guidance for public and private sectors to address major statewide problems, for example: Preserve and improve shoreline open spaces and scenic resources. Seek to utilize Hawaii's limited land resources wisely in order to insure the protection of the environment and the availability of the shoreline, conservation lands and other limited resources for future generations. Seek to accommodate urban growth in existing urban areas while maintaining agricultural lands in agricultural designation. 46

That part of the State Plan dealing with implementation—and especially conformance—is the most significant for the purpose of land use control. This is so because the State Plan requires conformance to its

State Land Use Controls

15

policies, goals, objectives, and priority guidelines across virtually the whole spectrum of state and county land use actions. However, in 1984 the legislature defined conformance as a weighing of the overall theme, goals, objectives, and policies and then determining that an action, decision, rule, or program is consistent with the theme fulfills only one (or more) of the goals, objectives, or policies. Under this new definition, conformance becomes relatively easy to accomplish—and nearly impossible to contest. This is particularly true now that "guidelines" has replaced "directions" in "statutory directions." "Guidelines" now means merely a "stated course of action which is desirable and should be followed unless a determination is made that it is not the most desirable in a particular case; thus a guideline may be deviated from without penalty or sanction. "47 State

Activities

The State Plan makes it clear that all state programs are to be in conformance with its theme, goals, objectives, policies, and priority guidelines as well as with its twelve functional plans: "The formulation, administration, and implementation of state programs shall be in conformance with the overall theme, goals, objectives, and policies and shall use the priority guidelines contained in this chapter, and the state functional plans adopted pursuant to this chapter."48 These state programs shall include, but not be limited to, those programs involving coordination and review; research and support; design, construction, and maintenance; services; and regulatory powers. State programs that exercise coordination and review functions shall include, but not be limited to, the state clearinghouse process, capital improvements program, and coastal zone management program. State programs that exercise regulatory powers in resource allocation shall include but not be limited to the land use and mangement programs administered by the land use commission and board of land and natural resources. State programs shall further define, implement, and be in conformance with the overall theme, goals, objectives, and policies, and shall utilize as guidelines the priority guidelines contained within this chapter, and the state functional plans adopted pursuant to this chapter.49 Certain programs relating to budget review and land use control are particularly singled out as "implementation mechanisms" for conformance with the state plan goals, objectives, and policies (but are only to use as guidelines the priority guidelines of the act). These are program appropriations, capital improvement project (CIP) appropriation, budgetary review and allocation, and "land use decisions made by state

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agencies" (such as the Land Use Commission and the Board of the Department of Land and Natural Resources). 50 Thus, the state's major land use decision-making body is to some extent bound by the state plan and its subordinate functional plans in land reclassification (boundary amendment) decisions. Interim guidelines for the use of the Land Use Commission were drafted, but failed to become law. 5 1 As the guidelines set forth in amendments to the State Land Use Law governing Land Use Commission boundary amendments automatically terminated in the summer of 1980, the commission is without specific statutory guidance—though it has its own rules and regulations—in the matter of land use boundary amendments until the land use law is further amended, although the functional plans implementing Act 100 now provide a measure of guidance, implementing as they do Act 100's statutory directives. 52

County Plans The general and development plans of counties must also conform to the State Plan's goals, objectives, policies, and priority guidelines as of January 1982. 5 3 This directive is particularly critical to the county land use regulatory scheme (discussed in detail in chap. 3), since most county land use control schemes are tied so directly to their general or development plans that land use changes made contrary to those plans are invalid. Thus, for example, in the City and County of Honolulu a 1973 City Charter provision requires all changes in local zoning and subdivision ordinances (including approval of so-called map amendments or rezonings to permit changes in land use) to conform to local development plans. 54 All of these detailed development plan elements must now conform to the provisions of the State Plan, though, as noted above, deviation from a "priority guideline" now carries no penalty and "conformance" to the rest is easily achieved. However, Act 100 also makes its own specific requirements with respect to both the manner of formulation and the contents of county general and development plans, providing, however, that a county charter may potentially supersede it. 5 5 T H E FUNCTIONAL PLANS

While broad policies are sketched in the State Plan, it is the functional plans to which state and county agencies must look for guidance. 56 The State Plan provides for the preparation of at least twelve such plans, ten of which the legislature adopted in 1984 by concurrent resolution: conservation lands, energy, higher education, health, historic preservation,

State Land

Use

Controls

17

housing, recreation, tourism, transportation, and water resources development. The functional plans are required to "further define and implement statewide guidelines with respect to the goals, objectives, policies, and priority guidelines" contained within the statute. In the same paragraph Act 100 directs that "county general plans and development plans shall be used as a basis in the formulation of state functional plans." 57 The State Plan also sets out basic requirements for the functional plans: The functional plan shall contain objectives to be achieved and policies to be pursued in the primary field of activity and such policies shall address major programs and the location of major facilities. The functional plan shall also contain implementation priorities and actions which may include, but not be limited to, programs, maps, regulatory measures, standards, and interagency coordination provisions.58 T h e initial responsibility for preparing each functional plan was assigned to named state agencies (such as D P E D and D L N R ) , which were required to submit their plans periodically to an advisory committee and policy council. The former is entitled to have its recommendations accompany the plan to the policy council and the latter is entitled by statute to have its recommendations accompany the functional plan to the legislature for action. 59 Form and content are set out in some detail in guidelines prepared by D P E D in its role as staff to the policy council. 6 0 After it became apparent that the length of and potential contradictions between the draft functional plans submitted to the legislature in 1980 and 1981 made them unwieldy for the purpose of providing specific directions to state and county agencies, each draft plan was divided into two parts, a technical reference document, and a plan document, only the first of which was identified as the functional plan. T h e 1984 versions approved by the legislature are much-shortened functional plans of between twenty-five and forty-five pages, the first five or so pages of which are similar in each plan. This uniform preface first recites the legal basis for the plans in Act 100 and the basic purpose of the functional plans, that is, to implement the State Plan. In their present form, the twelve functional plans have been distilled from some twenty-five hundred pages into about three hundred and fifty. 61 Moreover, they are written as though meant to be guidelines and not the law of the state. The language is even less mandatory concerning the effect of the functional plans on county and private sector actions. 62 Moreover,

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according to one interpretation from a deputy attorney general "there are no specific provisions requiring conformance of county general and development plans with state functional plans."63 Indeed, a review of the old (1978 version) State Plan discloses none—directly. What that State Plan did say was that state functional plans "shall be utilized as guidelines in amending the county general plans to be in conformance with the overall theme, goals, objectives, and priority directions," and "the formulation, amendment, and implementation of county general plans or development plans shall utilize as guidelines, statewide objectives, policies, and programs stipulated in state functional plans adopted in consonance with this chapter."84 This is consistent with the view of DPED, which lists as the first of two principal uses of functional plans, "they set policy, which agencies will use to guide their activities." As DPED observes, there was apparently "a great deal of communication and coordination" in the process of developing the State Plan. 65 Taken at their word, and given the 1984 amendments to Act 100 discussed above, it would now appear that the counties are under no obligation to do more than try to be guided by the guidelines of the functional plans on matters of statewide importance, except where it was not "desirable" in a "particular case," and weigh the "overall theme, goals, objectives, and policies" of the State Plan and determine that their plans are (1) consistent with its theme, and (2) fulfill one or more of its goals, objectives, or policies.66 Thus the functional plans may be treated as guidelines only for the preparation of county general and development plans, and these county plans "need only be in the formulation and amendment of state functional plans."67 Finally, to the question of whether the county general and development plans can be required to conform to the state functional plans,68 the state attorney general said no, because of the method used to adopt the functional plans: "[W]e find it difficult to conclude that the functional plan adopted by concurrent resolution takes precedence over a county general plan adopted by ordinance."69 T H E VALIDITY ISSUE

Assuming the conformance issue is now resolved, there is the question of whether the functional plans will be binding given the manner in which the state has chosen to implement the State Plan as set out in Act 100— by concurrent resolution. The usual practice for legislators in making laws is to do so by enacting a statute. Indeed, the Constitution of the State of Hawaii seems to raise this customary practice to a constitutional imperative: "No law shall be passed except by bill." The Constitution

State Land Use Controls

19

then provides for the usual procedures—three readings and presentation to the governor for veto—for the converting of bills to statutes. 70 The legislature seems to be flying in the face of the Constitution in providing for the passage of the functional plans by concurrent resolution only. This appears to be the position of the state attorney general. First, by way of implicaiton, the attorney general's interpretation implies that the different methods used to pass state functional plans (resolution) versus county general plans (ordinance, a legislative act of the same comparative legal quality as an act of the state legislature) led it to conclude that the functional plan did not take precedence over a county general plan: ". . . we find it difficult to conclude that the functional plan adopted through a concurrent resolution takes precedence over a county general plan adopted by ordinance." 71 Later the attorney general was requested to advise the legislature whether a functional plan adopted by concurrent resolution would constitute a mandate to the counties. The attorney general responded: "We do not believe that a functional .plan 'adopted' by way of concurrent resolution constitutes an authoritative command." 72 The precise question asked of the attorney general was not about the enforceability of plans passed by concurrent resolution. As interpreted by the attorney general, the question was whether the counties were required to undertake new programs or functions as a result of a mandate from the state via the functional plans. Nevertheless, the attorney general dealt as well with the issue of whether a concurrent resolution could, in the circumstances of the functional plans, have the force of law. Not only did the attorney general characterize the concurrent resolution process as an expression of intent only but also implied that the counties' powers, duly granted by charter, may constitute home rule powers with which the state cannot tinker, even in the State Plan: By definition, concurrent resolution is an expression of legislative policy from both houses but does not constitute a command. It is without legislative quality of any coercive or operational effect and is used chiefly for administrative purposes of a local or temporary character. Article III, Section 14, Constitution of the State of Hawaii. Finally, we note that each county is responsible for its own planning to promote orderly development in accordance with a general plan. Honolulu Charter §§ 5-401 to 5-413, §§ 6-1001 to 6-1010; Maui Charter §§ 8-8.1 to 8-8.5; Hawaii Charter §§ 5-4.1 to 5-4.4; Kauai Charter §§ 15.01 to 15.12. In light of this duty it seems clear that implementation of the State Plan

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could not be interpreted as a new program or increase in the level of service under an existing program. 73

The legislature is not prohibited from implementing a duly enacted statute, such as Act 100, by means other than another duly enacted statute, however. The "infilling" of the general provisions in Act 100 can easily be characterized as just such implementation. Act 100 is filled with general standards and guidelines, such as those pertaining to shoreline management, which, if assigned to an administrative agency like the Land Use Commission for implementation, would presumably cause no constitutional problems. Indeed, the Supreme Court of Hawaii has said as much in only a slightly different context. 74 In the course of a long opinion upholding the rights of a developer to erect a high-rise condominium structure across from Thomas Square in Honolulu, the court dealt with a claim by Life of the Land that the making of a key decision by resolution rather than by ordinance was defective. In holding it was not, the court emphasized the ability of a legislative body to act in a nonlegislative manner when implementing previous duly passed legislative acts: "A non-legislative act executes or administers a law already in existence. . . . The City Council approval of the Developers' application was a non-legislative act because it administered a law already in existence." 75 It would appear, then, that the concurrent resolution procedure for making functional plans binding upon those agencies and officers contemplated by Act 100, is entirely legal, notwithstanding the opinion of the attorney general. Although it is becoming increasingly complex, the Hawaii state land use planning and control system remains a national trend setter. The system is still evolving; for example, the role and authority of the Land Use Law continues to be fluid. Since statutory guidelines for boundary changes have expired, guidance language in the functional plans becomes increasingly significant. 76 With the passage of ten of twelve functional plans and the 1984 amendment to Act 100, the State Plan, the problems of local government conformance to state plans may well be behind us and the new era envisioned by the governor about to dawn.

3 Local Planning and Zoning Zoning reached puberty in company with the Stutz Bearcat and the speakeasy. F. Scott Fitzgerald and the Lindy Hop were products of the same generation. Of all these phenomena of the twenties, only zoning has remained viable a generation later.

Babcock, The Zoning Game

Although the legal and planning literature of the 1970s was filled with gleeful requiems for local zoning, the "ancien regime" of land use controls is not only alive but increasingly robust even after years of neglect.1 Local zoning never really declined except in the perception of commentators on the land use scene. The cities—where the vast majority of people live and work and where, therefore, land use decisions most directly affect their way of life—never abandoned zoning.2 While states and federal agencies may have promoted, often successfully, regional and statewide land use management and control systems as an added— sometimes even superseding—layer of control upon local governments, these were in addition to, rather than a substitute for, local zoning. In a sense, then, the ancien regime was not overthrown but circumscribed— applied to urban areas, addressing primarily local concerns—with the exception of Hawaii, which chose to zone the entire state through its Land Use Law. Zoning appears to have sprung from the need to uniformly control nuisance and, whether or not concomitantly, to protect property values.3 The history of zoning is adequately treated in a number of articles, books, and treatises. It first appeared in recognizable form during the latter part of the nineteenth century and the early part of the twentieth, although its antecedents precede the beginnings of the United States.4 Its efficacy could have been blunted by an unfortunate linkage between regulation and taking in the 1922 case of Pennsylvania Coal Co. v. Mahon, in which the U.S. Supreme Court held that a regulation, if it went too far, could result in a "taking" under the Fifth Amendment to the U.S. Constitution, for which compensation would have to be paid.5 "Taking" in this context means the regulation of land so heavily that the owner is left with virtually no permissible uses. This so-called regulatory taking issue still bedevils land use regulation. However, a few years

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later in the landmark Euclid case, the U.S. Supreme Court ultimately held that the dividing of a city or village into use zones and the permitting or prohibiting of various uses and classes of uses therein was constitutional, though such zoning might be found to be unconstitutionally applied in a given case.6 Thereafter, zoning swept the country, spreading to every major city in the United States.7 By 1930, fully forty-seven of the nation's states had adopted zoning enabling legislation in accordance with the federal Standard Zoning Enabling Act, and 981 municipalities, representing 67 percent (or 46 million) of our urban population, had adopted the zoning ordinance as the latest and most useful technique to control the use of land.8 The Basics of Zoning As the Euclid case made abundantly clear, while the so-called "fact" basis of zoning may well have as its aim the abatement of nuisance and protection of property, zoning is firmly rooted in the police power—the power to regulate for the protection of the health, safety, morals, and welfare of the people.9 In most jurisdictions, arguably including Hawaii, that power is delegated from the state—the repository of police power—to units of local government through a zoning enabling act.10 That act is usually based on the Standard Zoning Enabling Act produced by the U.S. Department of Commerce in 1926. Such acts permit but do not require local governments to divide the land area in their jurisdictions into districts or zones and to list permitted uses, their permitted height and density (bulk regulation), and conditional uses in each. The map upon which the districts are drawn is called the "zoning map." A copy of the zoning map must usually be kept in the offices of the local government unit, to be marked with each change in district boundaries and each exception or variance granted. The lists of uses, bulk regulations, definitions, administrative procedures, and so forth, are collectively called the "text." Each list of permitted uses corresponds to a zoning district on the zoning map and consists of an exhaustive list of permitted uses, together with permitted accessory, temporary, and special or conditional uses. An accessory use might be a garage, while temporary use may refer to structures such as fruit stands or construction sheds. A special or conditional use is one permitted in a district but only subject to certain articulated conditions. For example, a neighborhood grocery may be permitted in a residential area provided it is screened, has no electric signs, and is open only at certain hours. The point is to preserve the character of the area. Each district also has a set of bulk regulations limiting, for example, the size

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of lot per unit, the permitted height of principal and accessory structures, minimum yard requirements, and off-street parking and loading requirements. There are essentially three categories of uses: residential, commercial, and industrial. They are increasingly exclusive, in that homes are not permitted in commercial or industrial districts nor factories in residential or commerical districts and so forth. The districts theoretically follow a use-intensity pattern, so that the low-density residential uses do not abut industrial or even intensive commercial uses. Thus, a ring of garden or medium-rise apartment buildings in a high-density residential zone might appropriately separate single-family homes in a low-density residential zone from a shopping center, as they have begun to do in Honolulu in Manoa Valley around the Manoa Marketplace. There is also a section in the text treating uses that were permitted at some past date but fail to conform to the existing land use regulations for the district, called collectively "nonconformities." Most courts have held that it amounts to an unconstitutional confiscation of property to require immediately the termination of what was previously a lawful use of property because the zoning has changed to prohibit that use in that district. Some jurisdictions have now begun to experiment with "amortization," the termination of a nonconforming use after the end of an arbitrarily determined useful life. 11 Local governments employ this technique most often in eliminating low-investment nonconforming uses, such as signs. Finally, there are administrative regulations setting forth how the zoning ordinance restrictions on a a particular piece of property may be changed. The principal agencies for administration of a local zoning ordinance are (1) a zoning officer or administrator; (2) the zoning board of appeals; (3) the local legislative body; (4) the plan commission. The zoning administrator (who often serves also as the building inspector) is generally the person responsible for seeing that the provisions of the zoning ordinance are carried out. He receives complaints of violations and if the ordinance requires them, issues zoning certificates. He also grants or denies certain special use requests. In Honolulu, that officer is the director of the Department of Land Utilization. The board of appeals, or zoning board of adjustment, generally hears all appeals from decisions of the zoning administrator and all requests for variances or exceptions from the terms of the zoning ordinance. It is an appointed body. The local legislative body is responsible for enacting the zoning ordinance in its original form (usually upon recommendation of a zoning commission appointed for the purpose) and for adopting amendments. The amendments, usually heard first by a recommending body such as the plan commission, take two forms: textual and map. The lat-

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ter, in which property is reclassified from one district to another, is by far the most common. The plan commission is constituted for the purpose of advising on the planning aspects of land use changes. The plan commission usually reviews requests for amendments and special uses, holds public hearings, and occasionally provides planning recommendations on variance and exception requests. It is an appointed body.

The Place of Planning in Land Use Controls In theory at least, land use regulations should follow comprehensive planning. Indeed, such was the original philosophy behind zoning in the United States. In 1928 the U.S. Department of Commerce promulgated a Standard City Planning Enabling Act, which contemplated the establishment of a plan commission for each adopting city whose duty it was to adopt a "master plan"—a comprehensive scheme of development—for the physical development of the city.12 However, the plan was to be advisory to the governing body of the city. The statutes of many states permit the formulation of such a plan by a plan board or commission. Many of these same states then require the adoption thereof by local legislative bodies. But few (Hawaii, California, Oregon, Florida) require conformance to these plans once they are adopted. Nor have many court decisions advanced the cause of mandatory planning before zoning. While observing that good planning is important as a requisite or even a prerequisite to effective land use controls, the judiciary has often interpreted planning requirements so broadly as to make them nearly meaningless. The following judicial characterization of the plan-zoning ordinance link was typical: "A plan may be readily revealed in an end-product—here the zoning ordinance—and no more is required by the statute. . . . No doubt good housekeeping would be served if a zoning ordinance followed and implemented a master plan . . . but the history of the subject dictated another course."13 Given such interpretations, comprehensive planning—except in Oregon, California, Florida, and Hawaii—is often advisory.

The State Enabling Act and County Charter County zoning enabling legislation is sparse in Hawaii, certainly nothing like that of states that have adopted the Standard Zoning Enabling Act. However, this brevity may not be terribly relevant, since Hawaii's four counties are home rule units of local government under the Hawaii Constitution. On the other hand, the Constitution gives the legislature specific authority to confer powers on the counties by general law. 14 It is

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therefore theoretically possible to argue either that counties have only those land use powers delegated them under the state enabling legislation or that the counties have independent power to provide for their own land use controls under the self-government provisions of the Constitution. T H E ENABLING ACT

The state enabling legislation grants to Hawaii's four counties the power to zone primarily as a tool to implement "a long-range comprehensive general plan prepared or being prepared to guide the overall future development of the county." The manner and method of administration and enforcement is left wholly to the discretion of the counties, except that nonconforming uses may be terminated only through amortization and then only in commercial, industrial, apartment, and resort districts. 15 As noted earlier, amortization of nonconformities has been upheld in several states, provided the period after which the use must end is reasonable. This reasonableness is generally a function of the owner's investment in the structure or use, and the structure's age in relation to its predetermined useful life. The enabling legislation also permits (but does not require) minor rezonings—"non-significant changes"—by administrative bodies (for example, zoning boards, plan commissions) or officers (for example, planning and land utilization directors), even though such rezonings are traditionally viewed as legislative acts requiring the passage of an ordinance by a county council.16 Finally, Hawaii is one of the first states in the country to require local governments to permit two dwelling units in all residence zones.17 Called "ohana zoning," the law was passed principally to help alleviate Hawaii's acute housing shortage and to permit extended families to live on the same lot, even if that lot is zoned for single-family residences. Only if public facilities (water, sewer) are inadequate, or bulk (yard, setback, height) requirements potentially infringed, may a county forbid such second houses. Although passed in 1981, the counties have been slow to implement the statute by appropriate modification to their respective zoning ordinances. C O U N T Y CHARTER PROVISIONS

The charters of the four counties all provide for zoning, and they do so in different ways, with different implications in particular for the legal effect of plans on the zoning ordinance. Those portions of the counties' zoning powers that are enshrined in the charters may not be altered by the county councils, either by ordinance or resolution. The State Constitution provides that charters may only be amended by general law of

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the legislature or by vote of the people of the county. 18 County charter provisions also deal with the relationship of planning to zoning. This issue is best analyzed on a county-by-county basis.

Honolulu The charter of the City and County of Honolulu ties zoning to planning very closely. Indeed, zoning and subdivision ordinances must conform to so-called "development plans" in order to be valid. 19 These development plans were adopted in 1982. A general plan was passed by resolution in 1977 but is largely advisory under the present charter. Designed to cover a wide range of objectives, the Honolulu general plan is supposed to "set forth the city's broad policies for the long range development of the city," addressing the general social, economic, environmental, and design needs of the city. It includes within its purview policy and development objectives relating "to the distribution of social benefits, the most desirable uses of land within the city, the overall circulation pattern and the most desirable population densities" within the city. 20 The development plans are supposed to implement the general plan's goals. There has been considerable debate in Honolulu over what the development plans should contain. However, the charter is quite clear as to what they are and what they must contain: "Development plans" mean relatively detailed schemes for implementing and accomplishing the development objectives and policies of the general plan within the several parts of the city. A development plan shall include a map of the area of the city to which it is applicable; shall contain statements of standards and principles with respect to land uses within the area for residential, recreational, agricultural, commercial, industrial, institutional, open spaces and other purposes and statements of urban design principles and controls; and shall identify areas, sites and structures of historical, archeological, architectural or scenic significance, a system of public thoroughfares, highways and streets, and the location, relocation and improvement of public buildings, public or private facilities for utilities, terminals and drainage. It shall state the desirable sequence for development and other purposes as may be important and consistent with the orderly implementation of the general plan. 21

The charter also addresses what they may contain: Development plans may contain statements identifying the present conditions and major problems relating to development, physical deterioration

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27

and the location of land uses and the social, economic and environmental effects thereof; may show the projected nature and rate of change in present conditions for the reasonably foreseeable future based on a projection of current trends; and may forecast the probable social, economic and environmental consequences of such changes. 22

Based on this language, some commentators have suggested that all existing zoning must also conform to any new development plans that are adopted. This was the position taken by the Supreme Court of Oregon in 1975 when it interpreted legislation tying planning to zoning. 23 While it is not clear whether the Honolulu City Council is required to rezone all land to accord with the development plans, the Supreme Court of Hawaii has held that zoning ordinances passed or amended after such plans are passed but contrary to their provisions are void.24 It is therefore often necessary for a landowner first to seek a development plan amendment from the City Council before requesting a zoning amendment, in order to meet this conformance requirement. The council presently hears and decides all such amendment requests at one "annual review," so as to adequately consider their cumulative effect on the plans. Maui In contrast to Honolulu, Maui County's plans appear at first to be advisory only. The pertinent charter provisions say nothing about land use changes and development proposals having to conform to either the general plan or the area-specific community plans. 25 These charter provisions were exceeded, however, by the ordinance enacted in 1980 to adopt Maui's general plan: All agencies of the county shall be guided in their official acts and decisions and program planning by said general plan. The general plan shall be a guide to which all community plans, zoning ordinances, subdivision ordinances, and administrative actions by county agencies shall conform. The general plan also shall be a guideline in the preparation of county budgets and capital improvement programs. 26

Thus, while the ordinance continues to emphasize the general plan as a guide, it nevertheless requires that the local zoning and subdivision regulations conform to that guide. There is nothing prospective about this language. The Maui ordinance provides that both past and present zoning and subdivision ordinances have to conform to its plans, which requires that all existing ordinances be changed as well. However, as

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this language is contained in an ordinance, not a charter, it can easily be amended. The Maui general plan is primarily a statement of policies. It consists of two parts: (1) a set of objectives expressing the common wishes and aspirations of the county residents; and (2) policies that will have to be carried out in order to attain each objective. Together the objectives and policies of this plan provide a framework for the specific decisions that the county will be required to make in the future. They are carried out through an implementation program. The detailed community plans are required to be far more specific: "Community plans shall set forth, in detail, land uses within the nine regions of the county. . . . The objectives of each community plan shall be to implement the policies of the general plan. Each community plan shall include a map of the region to which it is applicable." Each of the community plans is to contain but not be limited to "specific land use designations based on property lines." 27 Moreover, once adopted (by ordinance), community plans are incorporated into and made a part of the general plan, so that they are supposed to be as binding as the general plan with respect to local zoning and subdivision ordinances: "The community plans authorized herein are established and shall, upon adoption by the council, be part of the general plan of the county of Maui, as provided in the revised charter of the county of Maui." 28 The Maui charter, however, discloses no reference to community plans as suggested by the above. Thus, while it is possible to extract a community plan process from that portion of the charter that directs the Maui planning director to "prepare a general plan and revisions thereof at least every five years to guide the development of the county by planning areas," there is nothing specific in the charter to tie the community plans to the general plan, much less make it a part thereof, especially given the overall charter language, which appears to call for a general guidance document. 29 How Maui deals with this legal issue remains to be seen.

Kauai The relationship of planning to zoning on Kauai is relatively straightforward. The Kauai charter requires the county council to adopt a general plan setting forth in graphic and textual form policies to govern the future physical development of the county: Such plan may cover the entire county and all of its functions and services or may consist of a combination of plans covering specific functions and services or specific geographic areas which together cover the entire county and all of

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its functions and services. The general plan shall serve as a guide to all future council action concerning land use and development regulations, urban renewal programs and expenditures for capital improvements. 30

It is therefore unlikely that local zoning and subdivision regulations could be required to conform to the Kauai general plan based upon language in Kauai's charter. Since the charter further provides that relatively detailed development plans merely implement the guidelike general plan (a provision that Maui's charter lacks), it is also unlikely that development plans would be construed to supersede past or future zoning and subdivision regulations, even though the charter requires both plans to be adopted by ordinance and not by resolution.31 Hawaii Hawaii County, on the other hand, clearly means for its zoning and subdivision codes to conform to its planning schemes—in this case its general plan—at least prospectively: (a) The council shall enact zoning, subdivision, and such other ordinances which shall contain the necessary provisions to carry out the purpose of the general plan. (b) No public improvement or project, or subdivision or zoning ordinance, shall be initiated or adopted unless the same conforms to and implements the general plan. 32

The requirements for the Hawaii general plan are specifically spelled out, making it possible for its contents to be relatively detailed. These include a "statement of development objectives, standards and principles with respect to the most desirable use of land" in the county, identifying those uses as "residential, recreational, agricultural, commercial, industrial and other purposes," which are to be "consistent with the proper conservation of natural resources and the preservation of . . . natural beauty and historical sites." Details for the use of land are to address such issues as the most desirable population density; a system of roads and public access to shorelines and other open spaces; locations and improvements of public buildings; location and extent of public utilities and terminals; the extent and location of public housing projects; adequate drainage facilities and control; and air pollution. Anything not covered in detail is provided for in a more general statement recognizing that the county council may address "such other matters as may . . . be beneficial to the social, economic, and governmental conditions and trends . . . of the county . . . to promote the general wel-

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fare and prosperity of its people."33 The plan, like those of Honolulu, Maui, and Kauai, is adopted by ordinance.34 County Zoning in Hawaii County zoning in the State of Hawaii may be said to be a mixture of innovation and "Euclidean" zoning. Euclidean zoning (after the landmark Euclid case) is a convenient nickname for traditional as-of-right or self-executing zoning, (that is, no special permissions are needed) in which district regulations are explicit; residential, commercial, and industrial uses are segregated; districts are cumulative ("higher" uses like single-family residences are permitted in "lower" use zones, such as those for apartments); and bulk and height controls are imposed.35 H O N O L U L U : T H E D E M I S E OF E U C L I D E A N Z O N I N G

The City and County of Honolulu's Comprehensive Zoning Code (CZC) contains many—but not all—of the zoning requirements of the city and county. The rest are found in the charter. While clearly retaining many standard Euclidean zoning features, both contain many elements, such as special permit zones and overlays, that make Honolulu's zoning requirements the most technical and thorough of the four counties. Honolulu's CZC has, however, been widely criticized as cumbersome, repetitive, and complex.30 It is presently undergoing comprehensive revision, to be completed sometime in 1985.37 The Zoning Districts The Comprehensive Zoning Code divides the land area of Oahu into twenty-five districts, each with its own set of permitted uses, restrictions, and standards. These are, in turn, grouped into four broad categories, agricultural, residential, business, and industrial, and a category of special permit districts, as follows: Preservation District AG-1 Restricted Agricultural District AG-2 General Agricultural District R-l Residential District R-2 Residential District R-3 Residential District R-4 Residential District R-5 Residential District R-6 Residential District R-7 Residential District

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A - l Apartment District A-2 Apartment District A-3 Apartment District A-4 Apartment District B - l Neighborhood Business B-2 Community Business District B-3 Business-Residential District B-4 Central Business District 1-1 Light Industrial District 1-2 Heavy Industrial District 1-3 Waterfront Industrial District Planned Development-Housing (PD-H) District Flood Hazard District Historic, Cultural, and Scenic District Special Design District 38 Each district carries with it certain typical standards relating to permitted uses, bulk of structures, required yards, and the like, all theoretically designed to protect the health, safety, welfare, and morals of its inhabitants. While certain regulations apply generally to all districts, the CZC is so organized that once a landowner locates a parcel of property on the zoning map of Oahu, a general idea of what is permitted in the zoning "envelope" surrounding that parcel is easily found by looking up that district in the text of the CZC. The zoning map, prepared by the director of the Department of Land Utilization (DLU), is available for public inspection—and purchase—at the Office of the City Clerk. In the event of conflict between the map and the text of any ordinance, it is the text that prevails.39 An example of how the CZC works is the A - l apartment district. 40 First, the principal uses permitted in that district are listed, most of which are generally permitted, with additions, in the rest of the apartment districts as well (an example of cumulative zoning): (a) Principal uses and structures: (1) Agricultural and horticultural uses and structures; provided such uses and structures involving the keeping of livestock, poultry or bees shall not be allowed; (2) Multiple-family dwellings; (3) Churches; (4) Consulates; (5) Day nurseries; (6) Dwellings, detached, semi-detached and attached;

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(7) Sanatoriums; (8) Nurses' homes and similar housing for institutional employees; monasteries and convents; (9) Parks, playgrounds and community centers, botanical and zoological gardens and other public buildings and uses; (10) Public elementary, intermediate and high schools and private schools having similar academic curriculums; colleges and universities (but not trade schools or business colleges); (11) Public utilities installations and substations; provided offices or storage or maintenance facilities shall not be permitted; and provided, further, that utilities substations, other than individual transformers, shall be surrounded by a wall, solid except for entrances and exits, or by a fence with a screening hedge 5 to 6 feet in height; and provided, also, transformer vaults for underground utilities and like uses shall require only a landscaped screening hedge, solid except for access opening. 41 A brief summary follows of those uses deemed to be accessory to principal uses and structures (those "customarily accessory and clearly incidental and subordinate to principal uses and structures"), which are permitted provided they are not used so that they become principal uses (that is, a greenhouse as a principal structure, being usually commercial in nature, would not be permitted). 42 Next comes a list of uses and structures that are permitted only upon the fulfillment of certain conditions (these conditions and permits for use are discussed later in the section on zoning administration). One such category of conditional use, for example, is medical offices and clinics, "provided that the same are situated on a zoning lot adjacent to, or separated only by a street or alley from a zoning lot on which is situated a hospital or sanatorium which has a physical capacity of 50 or more beds."43 Other conditional uses include teahouses, museums, student dormitories, and private marinas. Special uses are also permitted only upon certain conditions but differ in that they are less permanent or less obtrusive than conditional uses. Examples of special uses include carnivals, circuses, luaus, fairs, private piers, boathouses, temporary structures, and uses incidental to land development or building construction. A subsection follows, listing a series of so-called "transitional uses" permitted on the edges of the A - l apartment districts, where they adjoin other, more intensely used districts.44 Next come the area, yard, and bulk regulations setting out size limitations on principal structures and indicating where accessory structures may or may not be located in relation to required front, side, and rear

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yards. 45 A specific subsection of this section applies to the intensity-ofuse ratio known as the "floor area ratio," or FAR. Briefly, FAR refers to the ratio of floor area to land area permitted, expressed as a percent or decimal. 46 Thus, a floor area ratio of .5 would mean that on a 10,000 square-foot lot the maximum floor space permitted would be 5,000 square feet. Additional height and yard limits would also apply, but usually application of the FAR results in a structure smaller than would be otherwise permitted within such height and yard limitations. Following this are the miscellaneous regulations applicable to permitted signs and off-street parking and loading. 47 A trend (since the 1970s) in district use restriction is the application of performance standards. Since one purpose of dividing uses into various district classifications is to segregate incompatible uses, it follows that the adverse characteristics of the various separated uses can theoretically be identified, quantified, and measured. This is particularly true regarding certain commercial and industrial use characteristics, where, for example, noise, dust, and smoke are readily identified as adverse. It has become increasingly common, therefore, to include in use restrictions, at least in industrial districts and in commercial and even residential districts as well, a set of so-called performance standards that users must meet (a) within the boundaries of their district, and (b) within the confines of their lots. The former is based on the assumption that certain adverse characteristics of a class of uses ought not to be permitted to affect users in nearby, nonrestrictive districts. The latter is based on the assumption that adverse characteristics, at least at some level, ought not to leave the premises of origination. 48 The Honolulu CZC provides for performance standards pertaining to noise and vibration in all districts, but concentrates in particular on the heavy industrial and waterfront industrial districts. Thus, for example, vibration levels are limited within the district in the industrial districts and within lot boundaries in all others. 49 A critical factor in the successful application of performance standards is measurement. Usually, sophistication in equipment and its operation are necessary in order to apply them. Costs can be considerable. For example, in the Honolulu CZC provision relating to vibration, it is specified that "a three-component measuring system approved by the City Council shall be used to make measurements required by this section."50 The Special Districts That zoning in large cities is substantially changed from the heyday of Euclidean zoning is clear.51 The most obvious change is the trend toward permitting: instead of the traditional zoning district listing

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ranges of permitted uses on a parcel so zoned, a special zone is set out in the zoning ordinance and a permit to develop a particular project is issued in accordance with certain standards and goals; nothing is permitted automatically. The Honolulu CZC is a classic example of this trend, particularly in its planned development, special design, and floodplain districts (discussed in chap. 8). Planned Development. Spawned by failures of the often clumsy and arbitrary Euclidean zoning system, the planned development (often "planned unit development" or "PUD") concept reflects an attempt to guide development of large tracts of land in a planned, unified manner while preserving for the developer some flexibility, without foreclosing innovative site planning and building techniques. Whether a planned unit development is permitted by means of actually rezoning the subject property or by the granting of a special use permit that overlays existing zoning regulations, the technique is usually the same. The local legislative body is presented by the developer with a detailed land use and development plan for which the developer, in exchange for being permitted to develop in accordance with that plan regardless of underlying zoning restrictions, pledges himself to build only in accordance with that site plan. 52 Honolulu uses the zoning district approach to planned development as opposed to the special use approach. While the process of obtaining permission to undertake a planned development is not greatly affected by this difference, the power and authority of the city and county to enforce its provisions may be. Thus, while some courts have been increasingly forceful in requiring local governments to grant special use permits where the various conditions and standards set out in the ordinance for such permits have been met, 53 many courts still allow a far greater degree of discretion for the granting or denial of special uses than in the granting or denial of requests for zoning map amendments or rezonings. Moreover, most courts regard the rezoning process as legislative—and hence to be exercised by the local legislative body—whereas the granting of a special use permit is quasi-judicial or administrative and therefore exercisable by someone other than the local legislative body. Appeals from the denial of a special permit are, in Hawaii, by way of the Hawaii Administrative Procedures Act (HAPA) and not by a de novo hearing—a trial—which has consequences for the need to develop a record in the hearing process (discussed below and in the section on zoning administration). Finally, and perhaps most important, permitting planned developments by rezoning makes it difficult to reclassify the property solely because the landowner fails to meet required conditions. While a permit may be more or less automatically revoked in the event of the breach of some conditions, a rezoning, as a legislative

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act, cannot occur without following the requirements of the ordinance with respect to any other map amendment or rezoning. 54 In Honolulu, that means City Council action, not an automatic termination of the use permit by the director of the Department of Land Utilization. The CZC presently permits planned development in only one kind of district—residential, and even then only in existing R-2 through R-7 residential and A - l through A-4 apartment zones. The language is curious: how can a zone be "existing" once reclassification has taken place? Either this means as originally classified or the planned development zone is an overlay zone, a zoning requirement that is described in the ordinance text, is mapped, and is imposed in addition to the requirements of the underlying district. 55 The CZC does not make this clear, however.58 In any event, it is an odd restriction on the rezoning process. A landowner seeking permission for a planned development applies to the DLU director, submitting a number of maps and plans calculated to show with some precision what it is he proposes to develop and how it will affect neighboring properties. Usually, a site for a planned development must consist of at least one acre. 57 The director then makes findings of fact and holds a public hearing in accordance with procedures set out in the CZC for the processing of an application for a land use permit without involving the council.58 This is unusual for a rezoning, which is, as noted before, usually held to be a legislative act. Special Design Districts. A less common approach to the regulation of development through zoning is to require that development of any kind be allowed only by special permit in certain areas. While a few communities appear to require practically all development to go through such a permitting process (for example, Irvine, California), the Honolulu CZC requires it by means of its special design district (SDD) designation in certain specific situations—new satellite communities, underutilized urban areas, areas adjoining natural open space and recreational uses, areas lacking public services, restoration and development areas, impact areas of proposed rapid transit stations, and areas of "critical economic, social and physical concerns"—and has applied it primarily in Waikiki.59 The Honolulu City Council establishes the district by ordinance either on its own motion or upon application of a landowner, the director of the Department of Land Utilization, or a governmental agency. The DLU director proposes a suitable ordinance and refers a report and ordinance to the Plan Commission, which reviews it, holds a public hearing, and sends it along to the City Council—all within thirty days. The council then holds a second hearing and either establishes the district or not.®0 If the district is established, the DLU director creates a design control

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system for all development in the district, setting forth "explicit design standards and guidelines for the regulation of the district and its development and maintenance." All development, both significant and nonsignificant, requires a development conformance certificate—really a permit—indicating conformance with those criteria, in order to begin. The certificate is issued by the DLU director.61 Interim Development Control Districts. Interim development control districts (IDCs) represent a form of interim zoning that has the effect of freezing otherwise permitted development in the area so mapped for a period roughly corresponding to the planning and reclassification of land into another zone; it is thus very nearly a form of overlay zoning. Its principal purpose is to prevent a "race of diligence" by property owners and developers to commence development in accordance with a presently existing zone classification—presumably less onerous—which the new classification would prevent. IDCs are created individually to cover various districts, and their provisions govern the granting of exceptions to those provisions, the extent of the "moratoriums," and so forth.82 The IDC technique was used in 1980 to control development in Kakaako, pending amendments to the CZC and appropriate local plans.63 This resulted in litigation involving the Admiral Thomas condominium project, across from one of Honolulu's urban parks, Thomas Square.64 Vested Rights, Development Rights, and Referenda. The point at which a developer is entitled to proceed with a development in the face of a newly enacted land use regulation that, if applied to the development, would hinder or prevent it is becoming a commonly litigated issue across the country. It was Honolulu's use of the IDC and then the application of the HCSD district (historic, cultural, scenic district; discussed in chap. 6) to the Admiral Thomas condominium project that produced the latest appellate court decisions in the area of vested rights. In two cases decided in 1979 and 1980, both involving Life of the Land and the Honolulu City Council, the Hawaii Supreme Court attempted to deal with the issue of a developer's right to proceed with a multistory condominium project despite the passage of an HCSD ordinance forbidding its construction.85 In the first case, the court hearkened back to two earlier opinions in which it had required developers to show that they had been given assurances by appropriate local government officials that they could proceed because the development met applicable zoning regulations and that they had a right to rely on such assurances.66 Good faith expectancy that a permit to build would be issued would not be enough. Moreover, money damages would be an inappropriate remedy even if rights had vested. In Life of the Land I, the court first said that development rights were acquired when the property was purchased

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and second that money expended in reliance on these rights—for architectural drawings and site planning—vested those rights to proceed. In Life of the Land II, the court backtracked somewhat by deciding this was not a vested rights situation after all and that the city was simply prevented from enforcing the HCSD ordinance because the pattern of meetings and assurances given the developer caused him to justly rely on the city's representatives (the city was "equitably estopped" from enforcing the ordinance) and that the city arguably never meant to apply the new HCSD ordinance to his development anyway; thus the law on vested rights and equitable estoppel was not advanced at all.67 A year later came the unholy row on the island of Kauai over a resort development at Hanamaulu known as Nukolii. There, despite considerable public opposition in the form of a petition drive to place before Kauai's voters a rescission of zoning permitting their condominiums and hotel, a development partnership began construction of the condominiums based upon an apparently validly granted zoning classification permitting such a development, even after the petition was certified (approved for voting) and the proposition to rescind was placed on the ballot. To no one's surprise, the proposition passed. Still the partnership continued to build, commencing hotel construction as well. After the zoning was ultimately rescinded, the partnership claimed that the right to finish construction had vested, taking advantage of the part of Kauai's charter initiative provision that expressly forbids such votes to affect vested rights. While the circuit court upheld the developer, the Hawaii Supreme Court reversed the decision and ordered the cancellation of building permits and the halting of all construction activities.88 The court held that once the referendum was certified, the holding of the referendum itself was the last step (before building permits could issue) in the development permit process, which the developer needed to obtain vested rights.69 The court also decided that unless no economic use were left, a landowner's property could not be "taken" by regulation. The decision will probably increase the popularity of the initiative and referendum in Hawaii. Changing

Districts and Uses

As has been observed elsewhere, the name of the game in zoning is change.70 The procedures for change in the City and County of Honolulu are set out in both the CZC and the Honolulu charter. They consist of amendments, special and conditional uses, and variances. The key actors are the City Council, the Plan Commission, the Zoning Board of Appeals, and the director of the Department of Land Utilization. Administration and Administrative Appeals. The administration of

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the zoning and subdivision ordinances of the City and County of Honolulu is largely in the hands of the director of the Department of Land Utilization, whereas the administration and initial formulation of the plans (general and development) that govern their content is largely in the hands of the chief planning officer (CPO), who heads the Department of General Planning (DGP). 71 The functional dichotomy, if not perfect, is preserved by the lodging of the Zoning Board of Appeals (ZBA) with the D L U , and the Plan Commission with the DGP. Thus, it is the D L U director to whom nearly all applications for land use change go and with whom interpretive and information requests are initially lodged. It is only upon the consideration of subdivision and zoning ordinances and amendments that the C P O is involved—and that only on a consultative basis.72 Appeals from the final decisions of the director and in the general administration of the ordinance go to the ZBA. In the event of an erroneous finding of fact by the director, or if the ZBA finds that he acted in an "arbitrary or capricious manner or had manifestly abused his discretion," the board will sustain the appeal. 73 Amendments and Public Hearings. There are five classes of amendments set out in the C Z C : changes in zoning (so-called map amendments or rezonings); amendments to the C Z C (so-called text amendments); establishment of special design districts (SDDs); establishment of HCSDs; and establishment of flood hazard districts. All require the adoption of an ordinance by the City Council. 74 The last three, once established, take on the characteristics of specialized "permit-only" zoning districts. The first two—changes in zoning and amendments to the C Z C — a r e procedurally accomplished in the same fashion as the creation (but not the use) of the last three. In all, it is critical to follow the procedural timetable. A missed deadline can result in a procedural defect that may require starting all over again. Whether map or textual, a request for an amendment is first submitted to the director of the Department of Land Utilization, in whom the city charter vests the power to prepare zoning amendments. 75 If the director chooses to prepare an ordinance, he must request comments and recommendations from pertinent organizations and neighborhood boards, who are required to respond in writing. The director then "shall consult with the Chief Planning Officer" and submit his report and recommendation to the Plan Commission. 76 The Plan Commission is specifically provided for by the charter. 77 Consisting of nine members, it not only advises the mayor, council, and director of the Department of General Planning, in which it is technically lodged (that department has the principal responsibility for local

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planning), and reviews local plans but is also vested by charter with the authority to review subdivision and zoning ordinances and amendments. 78 Upon receiving the report of the DLU director in regard to a proposed amendment, the commission must hold a public hearing and transmit the proposed amendment (with its recommendations and those of the DLU director) "through the mayor to the Council for its consideration and action" within forty-five days.79 The council must then hold another public hearing and either approve, approve with modifications, or reject the proposed amendment within ninety days after receiving the proposal from the commission. No action signifies rejection. 80 Throughout the proceedings, it is clear that the council has the "last word," and therefore it is reasonable to assume that the process up to the point of the council hearing and consideration is advisory only. Indeed, the Hawaii courts have so held, flatly rejecting contentions that formal administrative procedures apply to either the DLU or the Plan Commission's processes.81 One of the thorniest problem issues in the hearing process is how much the amendment can be changed by the council after the hearing without triggering the need for a new hearing. Presumably it could not substitute another amendment entirely. But surely it is not necessary to rehear an amendment proposal after the insertion of every new comma. In 1982 the Hawaii Supreme Court held that the raising of a height limit in the special Hawaii Capitol District by 60 feet (from 250 to 310 feet) after the public hearing was not sufficiently significant to require a new hearing. 82 While agreeing that council could not adopt a proposal different from the one "noticed" for public hearing merely because the changes were "advocated or discussed at a public hearing" the court declared that it would have to be "fundamentally different from that proposed [so] as to amount to a new proposal" in order to require a renotice and rehearing. 83 How the court would decide a more complex matter such as changes to development plans after hearing remains to be seen. A final point on the amendment process. Some courts have held that map amendments involving relatively small land parcels should be treated as judgelike or quasi-judicial determinations, even when made —as in Honolulu—by a legislative body like the City Council. 84 With largely local effects and often with contestants arguing for and against, the proceeding does more closely resemble the judicial process rather than the theoretically public-policy and general applicability character of legislation and the legislative process. The results of such a determination would be significant in the judicial process. While legislative

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decisions are, in accordance with appropriately drafted enabling provisions, subject to referenda, quasi-judicial decisions are not. 85 So far, the Hawaii Supreme Court has not had an opportunity squarely to address this issue, having held, if at all, only indirectly that the City Council's rezoning activity is legislative in nature. 86 With respect to rezoning generally, the council has the authority under the C Z C to "impose conditions on the applicant's use of the property, fulfillment of such conditions to be a prerequisite to the adoption of such ordinance or applicable part thereof."87 The C Z C thereby permits the council to engage in a form of conditional zoning. The condition is required to be "set forth in a unilateral agreement running in favor of the Council . . . recorded with the Bureau of Conveyances . . . so that the conditions . . . shall run with the land."88 Presumably this language is intended to convert the condition to a restrictive covenant enforceable by the City and County of Honolulu against whomever owns the property. Special and Conditional Uses. The city may impose conditions on land use changes without resort to conditional zoning, however, as it can now process special and conditional uses. Provisions in the C Z C specifically address such conditional permissions, each of which could, by the process of text amendment discussed above, be expanded to cover any situation to which conditional zoning might be applied. The difference is that the City Council is not involved in either process, except to the extent that it originally, or in the future (by way of text amendment) , sets out in each zoning district classification the special or conditional uses that might be approved, according to the process described below, in each. The conditional use permit is the broader of the two categories. Like the approval of planned developments, significant projects in councilestablished SDD's and HCSD's, and cluster developments, the conditional use permit application is issued by the director of the Department of Land Utilization. 89 In deciding the fate of such applications, the director is guided by the standards set out for such conditional uses generally, and by specific uses in particular, as set out in the C Z C and the list, if any, of conditional uses appended to or contained in the C Z C sections applicable to particular zone district classifications. The director may also vary the application of dimensional and bulk standards (yard, lot dimension, height) in permitting such uses, which authority is usually vested in the Zoning Board of Appeals or the City Council. 90 Special use permits appear to be granted for uses of a less permanent or intrusive nature. Reflecting that judgment and level of intrusion, no hearing is required; application to the D L U director is sufficient. 91 As

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with conditional uses, the special use permit is first restricted to those special uses set out as permitted in the various zoning district classifications. While some of the uses permitted in this category are both permanent and consequential—such as private vacation cabins—most are temporary in nature. 92 Variances. The Zoning Board of Appeals has the authority to soften the application of the precise requirements of the zoning ordinance under extraordinary circumstances. The standards for hearing and deciding such appeals, according to the charter, are based upon an applicant's convincing the ZBA of "unnecessary hardship," as follows: (a) the applicant would be deprived of the reasonable use of such land or building if it were used only for the purpose allowed in that zone; (b) the request of the applicant is due to unique circumstances and not general conditions in the neighborhood, so that the reasonableness of the neighborhood zoning is not drawn into the question; and (c) the use sought to be authorized by the variance will not alter the essential character of the locality nor be contrary to the intent and purpose of the zoning ordinance. 93 Procedurally, it is DLU which first receives the application for a variance, to determine if it can be resolved without a ZBA hearing. The applicant may then formally apply to the ZBA, which holds a public hearing. 94 Nonconformities The question of what to do about certain nonconformities in light of 1980 amendments to the state zoning enabling legislation on the termination of certain nonconforming uses is under consideration by the Honolulu City Council. 95 Until this question is resolved, these nonconformities may continue indefinitely, so long as they are not changed, expanded, or destroyed. Nonconforming uses of land (as opposed to structures) may be neither enlarged, moved about, nor expanded, and nonuse for six consecutive months or for a total of twelve months in any three-year period will result in termination. 96 Somewhat different rules apply to nonconforming structures. While they also may not be expanded, moved, or structurally altered, the nonconforming use of part of the structure may be expanded to the rest, under certain circumstances. Moreover, the use of the structure may change to other nonconforming uses, and the structure itself may be repaired (up to 10 percent of its value in any twelve-month period)

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thereby extending its life indefinitely. The repairs permitted are unlimited if for the purpose of "strengthening or restoring to a safe condition" a structure declared to be unsafe by an appropriate official. The structures must cease to be used in a nonconforming fashion if use is discontinued for twelve consecutive months or for any eighteen months in three years. If the structure is damaged or destroyed beyond 50 percent of its replacement cost, then it must be reconstructed in a conforming fashion only. On the other hand, a conforming structure on a nonconforming lot may be expanded or moved ". . . s o long as the other requirements of this chapter are met." 97 Finally, a single-family dwelling may be constructed on any lot—conforming or not—so long as singlefamily residences are permitted in the district where the lot is situated. 08 This represents a typical legislative policy judgment favoring the landowner with only a single residential lot that he legally cannot build on. Definitions The Honolulu CZC has a hefty section devoted to the usual general provisions defining technical terms such as "octave band filter" and redefining others such as "family" 99 whose definitions you thought you knew: The term "family" shall mean one or more persons, all related by blood, adoption, or marriage, occupying a dwelling unit or lodging unit; provided that domestic servants employed only on the premises, may be housed on the premises and included as part of the family; provided further, that in lieu of the above family and domestic servants no more than five unrelated persons may occupy a dwelling or lodging unit.

This last definition was effectively used to remove a Hare Krishna commune from a residential district limited to single-family homes.100 MAUI COUNTY

Maui's zoning scheme is traditionally Euclidean, with the exception of its historic preservation provisions (see chap. 5). In common with the County of Hawaii, Maui appears to have some virtually unclassified ("interim zone") areas that may well be awaiting completion of its general planning process, discussed earlier. It has also separately adopted a cautiously worded conditional zoning ordinance in 1980. The districts set out in the ordinance are for the most part both less complicated and less finely tuned than those in Honolulu, reflecting Maui County's lessdeveloped and more rural character.

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The Districts Maui is divided into seventeen zoning districts: 101 R - l Residential R-2 Residential R-3 Residential Two-family Apartment Hotel Airport Agricultural Planned Development

B-l Neighborhood Business B-2 Community Business B-3 Central Business B-R Resort Commercial M - l Light Industrial M-2 Heavy Industrial Civic Improvement "Project"

One or two points are worth elaborating. The planned development "district" is not a traditional zoning district at all but an overlay district. Thus, densities permitted therein depend upon which of the five residential district regulations apply to the PUD.102 Moreover, the PUD regulations specifically provide that "all other regulations shall be the same as those for the particular district in which the planned development is located."103 On the other hand, a planned development may be located in just about any district—residential, duplex, apartment, hotel, business, and industrial—as opposed to the restrictive choices available in Honolulu. Moreover, both the creation of such districts and the regulation of uses therein are the responsibility of the county Plan Commission, not the council. Maui uses a three-step approval process: approval, sketch plan, and unified site and building program. 104 The incentive for undertaking planned development in Maui is a series of density and related bonuses designed to reduce development costs, though whether they make up for the added processing costs must be determined by each applicant. 105 Of particular interest in Maui County is the "projects district" established in 1974.106 Its purpose is "to provide for the flexible and creative design of large parcels of lands under single or limited ownership that lie in a logical path of expansion."107 A design proposal for the project area is required prior to development. In return, the owner/developer retains a degree of flexibility much like that for planned development. Such districts are specifically identified on the Wailuku-Kahului General Plan. As with planned development zones, both the zoning ordinance and the subdivision ordinance remain applicable to developments within the district, except to the extent that their provisions are

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modified by or inconsistent with the project district provisions. As with PUD's, the Plan Commission decides whether to create such a district. 108 Maui has also established a civic improvement district for the purpose of "encouraging, securing and maintaining the orderly and harmonious appearance, attractiveness and aesthetic development of structures and developments in such districts in order that the most appropriate use and value thereof be determined and protected and that the public health, safety and general welfare be preserved."109 A "precise plan" for any such district must be adopted by the county council upon Planning Commission recommendation, which plan describes the area included, together with applicable standards of design. From there on an advisory committee, appointed by the mayor (with the approval of the council), regulates development by reviewing developer/applicant plans and approving or not in accordance with the standards contained in the plans. 110 The Napili Bay Civic Improvement District on West Maui's Gold Coast, for example, was established through the use of this procedure. Among the design and land use standards described in its precise plan were prohibitions on building height and total floor area, directives about the construction and style of buildings, restrictions on signs and advertisements, and instructions about the availability of off-street parking. Finally, a word about the interim zoning district as it operates in Maui County. When a permanent zoning ordinance was enacted in 1971, there were portions of the county that were nevertheless not classified in any district. To regulate land use in such areas (Wailuku, Makawao, Lahaina, Hana, Lanai, and Molokai), the county enacted an interim zoning ordinance. 111 Many parts of Molokai and the Kula district on the Island of Maui remain in an "interim zone," in which only residential uses are permitted. Even today, land classified as urban by the State Land Use Commission is often temporarily placed in this zone.112 Administration As in Honolulu, the administration of the zoning ordinance in Maui County is largely the responsibility of the county council, the Plan Commission, the Zoning Board of Adjustment and Appeals, and an administrative officer, the planning director. Changes in zoning are ultimately the responsibility of the council, whether or not they initiate the process.113 Variances are granted by the zoning board. In addition, the board acts on all appeals pertaining to the zoning ordinance and the

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decisions of the planning director. Failure to act within required time periods is deemed approval, not denial. 114 The present duties of the planning director and the Plan Commission are not altogether clear, due in large part to present charter language. The Maui charter provides for the planning director to prepare and revise the general plan and proposed zoning ordinances and maps. It provides for the Plan Commission to review, hold hearings upon, and make findings on the general plan and zoning ordinances. 115 The Maui zoning ordinance provides for review by the Plan Commission of subdivision ordinances as well.116 But the charter transfers that power to the Zoning Board of Adjustment and Appeals.117 The charter revisions also appear to have eliminated the Plan Commission in the formulation of the general plan, since no mention of any such involvement is made. The zoning ordinance delegates to the commission, however, the responsibility to prepare a master plan or plans of the urban areas.118 The Plan Commission is also left out of plan formulation with respect to community development plans. The commission is responsible only for reviewing and making findings and recommendations on revisions to enacted community development plans proposed by the planning director or by the council.119 Conditional Zoning Maui enacted a comprehensive conditional zoning amendment that became effective in December 1980 whereby a property owner may substantially improve his chances of obtaining an otherwise "iffy" rezoning if he agrees in advance to certain conditions calculated to mitigate public service burdens and protect the public against deleterious uses that might result.120 Formal, written agreement to such conditions as the county imposes might precede consideration of the rezoning request itself, but even the execution of a separate and unilateral agreement by a landowner to abide by such conditions will not bind the county to pass the requisite rezoning amendment. 121 The amendment restricts the imposing of conditions "to prevent circumstances which may be adverse to the public health, safety and welfare."122 It is contemplated that the conditions will be set out in a "unilateral agreement" running in favor of the council, to be recorded with the Bureau of Conveyances, assuring that any subsequent purchaser of the land has notice of them. The legal terminology applied to such conditions or declarations of covenants is that they "run with the land," though whether they will be subsequently enforceable depends more on the nature of the covenants (do they require a positive effect or merely a

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refraining from doing an act?) and who it is that seeks enforcement, rather than on anything the County of Maui may have in mind. This area of the law is one of the thorniest in the realm of real property and the subject of numerous articles and books. KAUAI COUNTY

Kauai appears to be the only one of Hawaii's four counties in which a comprehensive plan preceded zoning. Consequently, Kauai's general plan—and in particular its first goal, to maintain the concept of Kauai as the Garden Isle—has probably had a greater influence on the lateradopted Comprehensive Zoning Ordinance (CZO) than the plans of the other three counties. 123 As a result, the Kauai CZO varies from the standard Euclidean ordinance of the other counties. It is primarily a density-based, rather than lot/use-based, ordinance. 124

Districts, Uses, and Automatic Rezonings The Kauai CZO is organized into six major-use categories of fifteen districts and two overlay categories with nine districts, all of which are drawn on zoning maps depicting the six planning areas into which Kauai has been divided: Kapaa-Lihue, Koloa-Poipu, Hanapepe, Waimea, Hanalei, Kilauea, and Kauai-Niihau. 125 These districts are as follows: 126

Residential - R:

Industrial -1:

R-l

Limited Industrial - IL General Industrial - IG

R-2

R-4 R-6 R-10 R-15 R-20

Resort - RR: RR-10 RR-20

Commercial - C: Neighborhood Commercial - CN General Commercial - C G

Agriculture - A Open - O Special Treatment -ST: Public Facilities - S T - P Cultural/Historic - S T - C Scenic/Ecological - S T - R

Constraint - S: Drainage - S - D R Flood - S - F L Shore - S-SH Slope - S - S L Soils - S-SO Tsunami - S - T S

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The special treatment and constraint categories are overlay districts; thus the underlying mapped district classifications govern use therein except as modified by whatever special treatment and constraint zone conditions are applied by "overlaying" the special zones on top of the mapped zones. Kauai also uses conditional zoning extensively. Aside from providing for the imposition of conditions on any zone change for both health/safety and public improvement/heritage protection, the CZO also sets out the kinds of conditions that may be imposed. It further provides for "automatic" zone changes whenever specified conditions occur.127 The practice of automatic zone changes is a bit dubious, because zoning is a legislative act, and so, therefore, is rezoning, in Hawaii at least. Having a rezoning occur automatically arguably deprives a property owner of the usual due process involved in rezoning a parcel of real property, and some states therefore forbid the practice altogether. Others, however, permit automatic rezoning under very limited circumstances, comparing it to a special use with conditions.128 The breach of a condition of such a special use permit cause the permit to automatically expire, leaving the owner with whatever the underlying zoning is. This special use procedure is superior both administratively and legally. However, the Hawaii Supreme Court appears to have adopted the view equating conditional zoning and special uses in a 1980 decision, with the result that they are now one and the same in Hawaii. 129 Kauai requires a zoning permit for residential, commercial, industrial, and resort development, and a use permit for those commercial and industrial developments not listed as permitted uses in each district in the CZO. It thus has moved into permit zoning as opposed to the standard zoning envelope model where many uses are permitted "of right" in each district. There are usually four classes of zoning permits available for each development type. This zoning permit system is closely tied to the size of the project and its location in or out of one of the two classes of overlay districts: constraint and special treatment. An applicant for a zoning permit files an application with the county planning department, showing, among other things, existing and proposed structures. 130 Whether the planning director or the Plan Commission issues the permit depends upon which of the four classes of permit is required, which, in turn, depends upon the size of the development and its location in or out of an overlay or constraint zone. Use permits are required for a variety of commercial and industrial uses. For example, fifteen individual uses require a use permit in commercial districts, from animal hospitals and automobile sales to warehouses and schools. Such permits are granted only if the proposed use is

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compatible within the district and not detrimental to the health, safety, peace, morals, comfort, and general welfare of the community, will cause no substantial harmful environmental consequences, and will be consistent with the general plan. The commission or the director may impose a variety of conditions on the permit pertaining to such as location, amount and type and time of construction, type and amount of traffic, appearance of the building, and landscaping. 131 In a special treatment or constraint district much depends upon the nature and location of a proposed development as to whether it will be permitted. In these overlay districts, the underlying standard zoning district requirements—residential, commercial, agricultural, open space, industrial—apply, except as their special requirements impose further restrictions. There are three special treatment districts: Public Facilities (ST-P), Cultural/Historic (ST-C), and Scenic/Ecologic Resources (ST-R). In addition to zoning permit requirements, use permits are required for nearly all "uses, structures or development" in a special treatment district.132 Constraint districts, which are more traditional overlay districts, contain restrictions aimed at alleviating specific physical site development problems—or preventing development where such problems are too severe. There are six such districts, designed to deal with drainage, flood, tsunami, steep slope, shoreland protection, and unsuitable soil problems. 133 The flood, shore, and tsunami district regulations track various state and federal requirements, which are discussed in chapter 7 on coastal zone management and chapter 8 on flood hazard. Kauai's permit system is particularly evident in its approach to preserving agriculture and open space. In the agriculture district, no structure besides agricultural buildings and single-family residences is permitted without a use permit. Moreover, a use permit only allows the applicant an animal hospital, a church, a school, commercial recreation, or similar structures as determined by the planning director. Even if a use permit is issued, subdivision is limited (in order to "limit, retard, and control such subdivision of agricultural land that will destroy agricultural stability and potential" and to "avoid dissipation of agricultural land") according to a sliding scale that ties the number and size of the subdivided lots to the size of the original parcel. Thus, a parcel of ten acres or less can be divided into one-acre parcels, but a parcel between thirty and fifty acres may be divided into only five-acre parcels. However, while at least one dwelling unit may be constructed on each parcel of one acre or larger, three additional acres per parcel are needed for each additional dwelling unit on the same parcel, up to a maximum of only five dwelling units per parcel, regardless of its size.134

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The open space district is designed principally for the preservation of environmentally critical land or water areas and the regulation of development in hazard zones. As in the agriculture zone, the generally permitted uses are structurally limited to agricultural buildings and single-family residences. Land coverage is limited to 10 percent of a lot or parcel. Density is limited according to the underlying State Land Use Commission classification. Thus, the limit is one dwelling unit per acre in land classified urban (provided the slope is no greater than 10 percent), one dwelling unit per three acres if it is designated rural (or if the slope exceeds 10 percent in urban), and one dwelling unit per five acres in agricultural. 135 Both districts may be subject to the "agriculture park" ordinance passed in 1974, whereby an area of at least 350 acres in either the agricultural or open space zone may become a sort of agricultural, development-free horizontal condominium. 136 The purpose of the bill was and is clearly to prevent development of agricultural land and to make it available to small farmers. Administration The permit/performance slant of the Kauai CZO obviates much "normal" zoning administration. A few points of difference from standard practice in Hawaii in the variance and amendment process are worth noting, however. The variance on Kauai has two extraordinary features. First, although the zoning ordinance fails to recite the usual hardship requirement, it expressly rejects financial hardship as a "permissible basis for the granting of a variance."137 This rejection is preceded by an unusually articulate list of factors and restrictions on the granting of variances. Second, the variance request is processed, heard, and decided not by a zoning board of appeals, but by the Plan Commission.138 This is most unusual, as the hearing of variances is generally regarded as a quasijudicial proceeding for which an appeals board is usually uniquely qualified. On the other hand, as Kauai has tended toward a permitoriented performance land use control scheme, and as the Planning Commission has a substantial administrative, quasi-judicial role by hearing permit requests under that scheme, it is less illogical that it, as another appointed body, be entrusted with responsibility for variances as well. The amendment process also contains some novel facets. The Plan Commission not only receives and processes amendment applications but also holds the sole hearing on such applications.139 This is a laudable piece of economy. The practice (as in Honolulu) of holding another

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hearing before council is unnecessary. However, the CZO also provides that should the commission disapprove of a proposed amendment, its decision is final, except that decision may be appealed to the council, which must then hold a hearing before deciding the fate of the amendment. 140 It is not altogether clear why the Plan Commission is given authority to make final decisions on generally legislative matters. The providing of an appeal to the council does not really save this process. Identical procedures for both negative and positive decisions of the Plan Commission on proposed amendments would be more consistent, even if it is the intent that the Plan Commission have more than the usual advisory role to the council on amendment matters. HAWAII COUNTY

The County of Hawaii zoning ordinance is more traditional than those of the other three counties. With the exception of two overlay districts, the zones are textbook-typical. There are a host of permitted uses in each district, permitted automatically and without the need for, say, the use permit usually required in Kauai or the potential restrictions of a special design or historic, scenic, and cultural district in Honolulu. There is, however, a rigorous and comprehensive plan review process applicable to many of the districts. Districts Hawaii divides land into seventeen districts:141 RS Single Family Residential Districts. RD Double Family Residential Districts. RM Multiple Family Residential Districts. RA Residential and Agricultural Districts. A Agricultural Districts. IA Intensive Agricultural District. U Unplanned Districts. V Resort-Hotel Districts. CO Commercial Office Districts. CN Neighborhood Commercial Districts. CG General Commercial Districts. CV Village Commercial Districts. Ml Limited Industrial Districts. MG General Industrial Districts. O Open Districts. Combining Districts. S Safety District.

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Except for the last two, each lists uses permitted of right, followed by standard bulk limitations on these uses (yard, height, and so forth), density of coverage, and the like. The Hawaii Zoning Code states that no structure, use, development, or improvement of structures or land may occure in the RS, CO, CV, RM, CN, V, CG, ML, MG, U, or O districts or within seventy-five feet of a road, street, or highway right-of-way designated on the zoning map as a "tourist route" unless plan approval is obtained. Plan approval may also be required for any variance or conditional use permit. What's more, no hotel or condominium may receive plan approval unless it is approved in accordance with planned development permit procedures. A detailed site plan must be filed with the director of planning (who heads the Department of Planning), who must deny, approve, or defer it subject to conditions, according to detailed site planning criteria. The director's decision is appealable only to the county Board of Appeals.142 The director is also authorized to continually review any multiphase project, raising the potential of a stop-order in the event of violations.143 Thus, while the uses permitted are determined by the district regulations, the manner in which the uses are developed is controlled by the planning director and Board of Appeals in most zoning classifications. With admirable candor, Hawaii has adopted a zone classification designated "unplanned districts" for "areas not subject to sufficient studies to adopt specific district classification." Permitted therein are single-family dwellings and a series of agricultural uses, making it similar to the residential and agricultural districts.144 Aside from a relatively straightforward agricultural district, there is also an intensive agricultural district for the preservation of "high productive" agricultural lands as shown on the Hawaii general plan. 145 There is also an open district "to protect investments which have been or shall be made in reliance upon the retention of such open type use. . . ,146 Growing plants (if it does not impair a view), golf courses, historical sites, private recreation, and public parks are the principal permitted uses. Finally, a safety overlay zone is provided for "areas subjected to potential danger of life or property because of flash floods, earth or rock slides, action associated with earth faults, (tsunami) tidal waves, volcanic action or any other natural phenomenon." 147 Here and here alone is a special use permit required for any structure intended for human occupancy. So far, two such districts have been placed on the county zoning map: a safety flood hazard district and a South Hilo safety zone.148 The latter limits building heights to seven stories or ninety feet. The former is in response to the Coastal Hazard Program of the federal government (discussed in chap. 8).

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Planned Development and Other Special Approvals The most refreshing aspect of the County of Hawaii's planned development regulations is that they appear to permit commercial and industrial, as well as residential, developments.149 Moreover, planned developments are permitted as special use rather than as a new district classification, thereby avoiding any potential problems of automatic "reverting" to the former zone classification in the event that the planned development permit is violated. However, no planned development is permitted in any district unless the uses proposed are permitted either of right or conditionally in the zoning district where the property is situated. This will often require a rezoning before a planned unit development is approved. 150 This two-step process provides additional guarantees to property owners who have relied on existing zoning to develop their property. A unique feature of Hawaii's local land use regulations is the requirement that an environmental impact statement (EIS) accompany the application for a planned development permit. Not to be confused with a planned unit development, the planned development permit is a "license granted by the Planning Commission to allow submission of plans for a hotel and/or condominium development for Plan approval." 151 The EIS itself may be either major or minor, depending upon what the director of planning requires. The director may also decide whether and the extent to which areas of critical environmental concern need to be delineated.152 The EIS information provided by an applicant is referred to the council for review, comment, and recommendation before going back to the planning director for processing.153 Hawaii's charter shifts the power to hear and decide variances from the Plan Commission to the planning director, but only "as provided by law." 154 It is therefore not altogether clear that the director is authorized to hear variance requests until "conforming" legislation has been passed by the county council. The charter further provides that the decision of the director may be appealed in writing to the Plan Commission, and then, presumably, to the Board of Appeals. 155 A dissatisfied applicant may appeal the commission's decision to the Board of Appeals. The Zoning Code presently provides that "no variances shall be granted to allow a use not otherwise permitted within the district."158 This language would appear to foreclose the granting of the notorious use variance. Local zoning among the counties in Hawaii is both similar and diverse. Some of the most innovative and procedurally direct land use

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procedures in the country are written into the four county codes, as well as some of the most traditional. If the name of the zoning game is change, then Hawaii is playing the game, with major code revisions about to begin or already commenced in all four counties. In particular, major revisions or additions to the all-important detailed plans (which often take precedence over subsequent zoning amendments) are proceeding in the two most heavily developed of the four counties—Honolulu and Maui. While nationally known for its state land use schemes, Hawaii is also a laboratory for innovative and complex local land use controls. As a result of recent decisions of Hawaii's Supreme Court, such controls will be strictly enforceable as well.

4 Subdivisions Subdivision regulation is a land use control based on the police power and is second in importance only to zoning as a land use regulation. Hagman, Urban Planning and Land Development Control Law

The control of land development through the subdivision process is a relatively modern regulatory device. The subdivision ordinance developed from so-called "plat acts," which required that no parcels be divided and sold without the filing of a "plat," a drawing of the parcel showing the division or divisions into which it had been carved. The purpose of plat acts was to aid "conveyancing," or the buying and selling of land. Usually, the buying and selling of land is subject to recording acts, which require the recording of land transactions on an officially kept register. Thus, the state of the ownership of a particular parcel—commonly called the title—is ascertainable by a glance at the register. The document most commonly recorded on such registers is a deed or contract for the buying and selling of land. 1 Until late into the nineteenth century, land was usually described by "metes and bounds." Beginning at a relatively immovable landmark— an oak tree, a boulder, an iron stake, a stone boundary marker—a series of measurements consisting of angles, feet, degrees, and directions would give the boundary of the lot, ultimately ending or "closing" the perimeter description at the "point of beginning." The metes and bounds description was not only cumbersome—some descriptions run for pages—but also fraught with legal peril. A mistake in the description, often resulting in a measurement that did not close or return to the point of beginning, created a defect in title that often voided the transfer. 2 However, by taking the same parcel, giving it a name, dividing or "subdividing" it into two or more parts, numbering or lettering the parts or lots, and recording the whole drawing or plat, it was possible thereafter to refer to the individual lots somewhat as follows: " L o t 24 in Waihee's subdivision, recorded on the 4th day of March, 1972, Book 9, page 3." As a conveyancing tool, the subdivision plats were a huge success.

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As a land development tool, they were often an unmitigated disaster. In particular, larger subdivisions with many lots often were badly planned both internally and externally in relation to adjacent parcels. Streets were often not only poorly laid out (width, direction, intersection) but also simply terminated at the subdivision boundary. Major streets in one subdivision could—and did—lead directly into minor streets in another, and some streets ended abruptly at the property line. 3 This and other design and public facility shortcomings led to state subdivision enabling legislation permitting local communities to adopt subdivision regulations (usually ordinances) to deal with these problems. At first, local subdivision ordinances dealt primarily with an increasing volume of so-called design standards: width and composition of streets and sidewalks, road perimeter linkage, uniformity of building set-back, and the like. Street and road standards often incorporated by reference an official map showing where the community had decided to place its streets. From the design and location of public facilities needed to serve new subdivisions, it was an easy (if not necessarily logical) step to require their construction as a condition of subdivision approval. Thus, many state enabling acts directed local subdivision codes to require the building and dedication (donation to the community) of streets, sewers, water mains, sidewalks, and other public facilities. The subdivision ordinance was well on its way to becoming a development code by the 1950s.4 A logical step from regulating the design of public facilities and their dedication was the first mandatory reserving of open space and public building sites on subdivision plats and finally their dedication as well. The first, the reserving of sites for public uses and consequent prohibition (even for a short time) of an owner's developing such sites, was both common and practical. Increased residential construction creates the need for schools, police and fire stations, and parks. A number of state enabling acts directed that such sites be left undeveloped by private owner only for a specified length of time—usually a year—by which time the local government either had to purchase the site or let the owner develop it. Even this limited requirement met with owner resistance, sometimes resulting in litigation forcing the local government to pay for the development-free period, as if it were an option to purchase the property. 5 Nevertheless, such reservation requirements are common and compensation rare. The next step was more problematic: the required dedication of park, public building, and school sites. The theory was much the same as that supporting public improvement dedication requirements: if an owner proposes to develop property which will add to the population of a city

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or county, the would-be developer should provide the share of the park, school, and public building needs thereby generated. If the development were too small to generate by itself a need for a new school or park, then cash would do, to be paid into a fund for the purchase of a site as other residential subdivisions developed. Such mandatory dedication schemes have been upheld in a number of jurisdictions, usually so long as the dedication of land is required to fill a need attributable to the developer being asked to make the dedication or contribution. Such subdivision "exactions" are therefore increasingly commonplace. 6 The process of subdivision approval is much the same as that for planned developments (submission of preliminary and final plans for local government approval), discussed in chapter 3. Indeed, many states and local governments provide for simultaneous hearings and single-application submissions.7 Usually, a preliminary plat is first submitted to the local plan commission for review. Streets, sidewalks, lots, and public facilities are sketched on such plats, and conditions and dedication requirements are either written directly on it or if more lengthy, attached to it. After review by appropriate officials (usually building department staff) it is either approved, approved with modifications, or rejected. A more detailed final plat is then submitted, similarly reviewed, and, if accepted, sent to the city or county council for formal approval, execution, and recording. 8 The restrictions and conditions so recorded thus become covenants that "run with the land"; that is, they become binding on later purchasers of the lots. 9

Hawaii: Of Mandatory Dedications and Open Space The State of Hawaii has required subdivision exactions for several years. It does so by statute, directing each county to require and set standards for dedication of land for parks and playgrounds in their respective subdivision ordinances. The county may take money in lieu of land or a combination of land and money. Credit against the required dedication or money must be given both for privately owned parks and for lands previously dedicated. 10 The counties have responded in various ways to this park/playground dedication scheme. HONOLULU

While the subdivision ordinance (and any amendments) is ultimately passed by the City Council, it is initially prepared by the director of the Department Land Utilization and reviewed (public hearing, findings, and recommendations) by the Plan Commission. However, review of subdivisions themselves as well as the promulgation of rules and regula-

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tions governing such approach are up to the director. The rules prohibit the subdividing of land, the selling or advertising of any interest in land located in a subdivision (that is, a lot), or the recording of a plat of subdivision unless a final plan has been approved by the director. Moreover, no roadway may be opened or building occupied until the director approves the public improvements required by the rules and regulations. 11 Appeals from the director's decisions are heard by the Zoning Board of Appeals. 12 Honolulu follows a traditional two-step process in the review of subdivisions. An applicant files fifteen copies of a preliminary map with the director. Among the requirements for the preliminary map: 1 3 detailed location and dimensions of each lot; location and dimension of existing and proposed streets; slope and contour lines; location of landmarks and flood/inundation zones; proposed use (residence, park, public building, etc.) of each lot; existing and proposed infrastructure (sewer, water, landscaping). Copies of the map are distributed to other county and state agencies for review and comment at the same time the Department of Land Utilization conducts its own review. 14 The director has very little discretion in preliminary map approval. 15 Tentative approval means that the preliminary map conforms with the rules and regulations promulgated and the applicant may submit a detailed plan, provided the developer dedicates land for such as streets and parks (roads, streets, drainage, sewers, water, landscaping) and constructs or guarantees construction (by performance bond) of certain improvements, to guarantee they are in fact made. The final map must conform to the approved preliminary map. The decision of the director on this point is purely ministerial, the sole question being whether or not the preliminary map conforms. Honolulu has responded to the state's dedication of land for parks and playgrounds requirements by including detailed provisions in its subdivision code, which extend beyond subdivisions to multifamily buildings: "Every subdivider as a condition precedent to (a) the approval of a subdivision by the director, or (b) issuance of a building permit for multiple family development by the Building Department, shall provide land in perpetuity or dedicate land for park and playground purposes, for the joint use by the occupants of lots or units in subdivisions as well as by the public." 16 In single-family and duplex zoning districts, 350 square feet per unit must be dedicated. In planned development and multifamily districts, the amount is 110 square feet per dwelling unit or 10 percent of the maximum permitted floor area, whichever is less.17 Since the state statute permits money payment in lieu of the land dedication requirement, the Honolulu subdivision code so provides. 18 If the

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city receives cash instead of land, the money goes into a revolving fund for parks and playgrounds, to be paid out within five years for either the purchase of land for new or expanded parks/playgrounds, the purchase of park/playground equipment, or the improvement of existing facilities. Regulations set out standards for the minimum size of a parcel acceptable for dedication (two and a half acres in a residential district, 10,000 square feet in apartment districts).19 Priority is first given to establishing or expanding parks and playgrounds within one-half mile, one mile, then two miles of the project site. Honolulu permits credits against the aforementioned requirements primarily for private parks and playgrounds. These private facilities must be owned and maintained by the owner and occupants of the subdivision.20 KAUAI

Kauai's ordinance is similar in both form and content to the one described above for Honolulu, with the following exceptions. Unlike Honolulu, Kauai uses a population density standard to compute the amount of land to be dedicated for park and playground purposes: one and three-quarter acres per 1,000 "or fraction thereof." As population is difficult to predict until after the development is completed, Kauai's subdivision code makes the following estimates: 3.5 persons per singlefamily or duplex dwelling unit and 2.1 persons per multifamily dwelling unit. 21 The manner in which a developer may pay money in lieu of dedicating land is also different. The value of the land to be developed is used as a basis to calculate the amount of money to be paid: the "raw" land plus 50 percent of the difference between that raw land value and the prospective fair market value as improved for development purposes. While the money must be used for park and recreational facilities within the district where the subdivision will be developed, it is up to the county engineer to decide precisely how it is spent within that district. Finally, while credit for private parks is permitted (as the state statute requires), there is a limit of 50 percent on such credit. Thus all subdivisions will have contributed to, or developed, some truly public park and recreational facilities.22 MAUI

The Maui subdivision provisions, like those of Kauai, are found principally in a separate subdivision code. That ordinance appears to be administered solely by the planning director, who approves both preliminary and final subdivision plans. An applicant may appeal the director's decision to the Zoning Board of Adjustment and Appeals,

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which may also vary the subdivision ordinance's provisions as well as those of the zoning ordinance.23 As in Honolulu and Kauai (and pursuant to state statutory requirements) , Maui requires dedication of land for parks and playgrounds (or money in lieu thereof) as a condition for subdivision plat approval. The amount of land required is tied to the number of lots in the subdivision: 245 square feet per lot. In the event the director chooses to permit the contribution of money in lieu of land, the director may require either (1) $100 per lot or dwelling unit or (2) 245 times the fair market value prior to subdivision of the land per square foot (as determined by the State Department of Taxation) times the number of lots or dwellings within the subdivision.24 HAWAII

The Hawaii subdivision ordinance also tracks the two-part plan approval process characteristic of the other counties. As on Maui, it is the director of the Department of Planning who approves preliminary and final plats of subdivision. Hawaii appears to provide less detail in implementing the statutory requirements governing dedication of parks and recreation lands, however. It requires the reservation rather than dedication of suitable areas for public parks, playgrounds, schools, and other public building sites in any subdivisions capable of supporting two hundred or more dwellings: 5 to 10 percent of the area of the subdivision, for two years.25 In sum, the four counties are largely responsible for the implementation of subdivision control in Hawaii. The four subdivision ordinances are similar in structure and control. All respond to the mandatory park and recreation land dedication requirement imposed by statute but in substantially different ways. Only one county—Kauai—ensures that a percentage of truly public areas will be provided by the erstwhile subdivider. None of the counties address the phasing and timing of development and infrastructure improvements through their subdivision codes in the manner of, say, Ramapo, New York, as set forth in the landmark Golden v. Town of Ramapo.26 As briefly noted in chapter 3, this "sequencing" is addressed, if at all, in the various county development plans.27 It is an important element in the public management and control of land. Without the provision of public improvements and the sequencing or timing of development to coincide with those improvements, the planning for both public and private development becomes increasingly divorced from practice.

5 Redevelopment and Housing: Virtues in ConflictP The ecological crusade, if taken literally, will either stifle growth or will drive up housing costs; in either event the heaviest burden will fall upon the poor. By the same token, the production of all the housing that is needed, at the right price and near job opportunities, may be expected to have adverse effects on the environment that has become so precious to the white middle class. Babcock, Billboards, Glass Houses and the Law

Federal, state, and local housing programs have a substantial effect on the use of land. This is because the rules and regulations applicable to government-sponsored housing and redevelopment programs are often specially linked in their development phase to land use controls. Federal housing programs, for example, are often specifically linked by statute or regulation to other federal land use programs relating to environmental policy, historic preservation, flood disaster protection, clean air, and clean water. 1 Hawaii is heavily committed both to redevelopment and to increasing the supply of housing, both of which have implications for the regulation of land use, especially in the urban core of Honolulu. The Hawaii Housing Authority, for example, operates many federal housing programs and is granted—by ordinance and statute—significant land use control powers and exemptions. Moreover, Hawaii's unique private residential leaseholdings and the laws designed to encourage conversion of leasehold property to fee simple ownership significantly affect the probability of continued residential use in many parts of Hawaii. What follows is a brief summary of those aspects of the federal housing program that affect the housing and redevelopment processes in Hawaii, followed by a survey and analysis of those housing and redevelopment programs in Hawaii that seem to most affect the regulation of land use.

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The Federal Program in Hawaii Federal housing programs are primarily housing subsidy programs. The regulations, both those affecting the use of land and those which do not, come with acceptance of federal money by those agencies—primarily state and local—that choose to participate in the programs. The principal vehicle for federal housing subsidy programs is the Housing and Urban Development Act of 1968, as supplemented and amended in the 1970s.2 The 1968 act was massive in scope, intended to provide twenty-six million new and rehabilitated housing units by 1978, six million of which were specifically targeted for low and moderate income families.3 Its most famous (or notorious) program features derive their names from the sections of the act that set out the basics of each program: sections 235 and 236. Section 235 provides direct mortgage payment subsidies for new and rehabilitated housing purchases by low-income families. Section 236 provides direct mortgage payment subsidies to qualified organizations owning co-op and rental housing. In 1974 the federal Housing Assistance Program and Community Development Block Grants (CDBG) were created. 4 Under the former, new construction of low-income units may be proposed by a developer directly to the federal Department of Housing and Urban Development (HUD), which approves if there is not (or is not likely to be) an adequate supply of such housing in the project area. The local government in whose jurisdiction the housing is proposed may object to the project if it is contrary to the locally adopted and HUD-approved Housing Assistance Plan (HAP). If it is so found by the secretary of HUD, the application must be denied. 5 The program applies to mobile homes and multifamily structures as well as single-family homes and is also applicable to the rehabilitation of existing housing.6 The siting of HAP projects in areas of "minority" construction or "racially mixed" areas is discouraged. Federal regulations forbid the location of subsidized low-income housing in areas subject to "adverse environmental conditions" such as flooding, pollution, mudslides, noise, and vehicular traffic. In particular, it may not be built in an area identified by HUD as subject to flood hazard unless flood insurance is available. Specific reference to and compliance with the National Environmental Policy Act (NEPA), the Clean Air Act, the Clean Water Act, and historic preservation programs are also required. The site must also be accessible to social, recreational, educational, commercial, health, and other municipal facilities and services equivalent to those typically found in neighborhoods of unsub-

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sidized housing. Finally, travel time to jobs for the contemplated residents "shall not be excessive.'"7 These factors obviously limit the placement of development projects in a community, which must adjust its local land use controls accordingly. The Community Development Act of 1977 amended the Block Grant (CDBG) program, the primary focus of which was to consolidate socalled "categorical" (subject-specific) physical revitalization programs into a single program. 8 Among the permitted uses for such grants are: 1. Rehabilitation of publicly owned or acquired properties for use or resale in the provision of housing. 2. Historic preservation of sites or structures eligible for listing in the National Register of Historic Places or in a state or local Inventory of Historic Places, or designated as a state or local landmark or historic district by appropriate law. 3. Public acquisition of real property (including air rights, rights of way, easements, and other interests) which is blighted and appropriate for rehabilitation from the standpoint of sound community development and growth. 4. Conversion of land to other uses where necessary or appropriate to the community development program, including the purchase of land to be used for the development of housing for low- and moderate-income persons. 5. Public facilities and improvements (senior centers; parks, playgrounds, and other recreation facilities; neighborhood facilities; solid waste disposal facilities; fire protection facilities; parking facilities; public utilities; street improvements; water and sewer facilities; flood and drainage facilities; and others).9 CDBG regulations require a series of plans and planning documents that have the effects of controlling both the use of land in the site area and the choosing of sites for revitalization. Among the most salient features of the CDBG are those applicable to the Housing Assistance Plan (HAP), which identifies the condition of the applicant's housing stock, the needs of low and moderate income persons for housing assistance, and the goals for assistance best suited to meet these needs. The plan must propose general locations for assisted housing that promote greater choice of housing opportunities and avoid undue concentrations of assisted persons in areas containing a high proportion of lower income persons.10 Of particular significance for land use are those standards and criteria to be used by HUD (in the forms of regulations) in approv-

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ing HAPs that link other federal land use and environmental laws to the federally assisted housing program. These specify that the applicant must (1) insure that facilities under its ownership are not listed on the Environmental Protection Agency's (EPA) list of violating facilities; must (2) comply with the flood insurance program and its associated land use controls; and must, in connection with environmental assessments required under NEPA, (3) comply with Sec. 106 of the National Historic Preservation Act (NHPA) Executive Order 11593, and the Preservation of Archaeological and Historical Data Act of 1966 by (a) consulting with the State Historic Preservation officer to identify properties listed in or eligible for inclusion in the National Register of Historic Places that are subject to adverse effects by the proposed activity, and (b) complying with all requirements established by HUD to avoid or mitigate adverse effects upon such properties. 11 Hawaii's counties assist in the construction of low- and moderateincome housing units primarily by serving as conduits for federal funds under the programs described above. This is so because many of these programs specifically require local government to provide the lead role.12 The power to so act is specifically delegated to the counties under various legislative enabling provisions which also set out key powers and duties largely tracking those of the Hawaii Housing Authority: "Any law to the contrary notwithstanding, any county shall have and may exercise the same powers, subject to applicable limitations, as those granted the Hawaii housing authority . . . insofar as such powers may be reasonably construed to be exercisable by a county for the purpose of developing, constructing, and providing low-income housing. . . ,"13 As a result of these provisions, all four countries are currently administering housing programs pursuant to the directions and objectives set out therein. County housing programs in Honolulu are the province of the City and County Department of Housing and Community Development (DHCD). The oldest functioning county housing agency in Hawaii, DHCD also serves as Honolulu's urban renewal authority. From 1970 through 1977, DHCD assisted in the production of 3,408 new housing units, 90 percent of which were built in urban renewal areas.14 DHCD also instituted a housing rehabilitation program, using Section 312 of the Housing and Urban Development Act and Section 502 rehabilitation loan funds. 15 The Hawaii County Housing Agency is responsible for county housing on Hawaii. It has worked closely with the Hawaii Housing Authority on a number of projects, assisting the state substantially in reducing

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sales prices and rental costs. The agency plans to provide some 2,025 new units by 1985. The Kauai County Public Housing Agency, responsible for county housing on Kauai, plans to develop more than 1,000 homes by 1985. 16

The Hawaii Housing Authority Much subsidized housing throughout the state is developed and administered by the Hawaii Housing Authority (HHA). 17 The HHA is composed of eight members, six appointed by the governor, plus the state director of social services and his special assistant for housing. It is placed administratively in the State Department of Social Services and Housing. 18 Several provisions in HHA's enabling legislation give it significant land development authority well beyond that of the private sector and freedom from state and local land use control that enable it to build housing in areas otherwise closed to development. For example, the HHA has specific power to develop land in the state's agricultural and conservation land zones—except on federal lands and in state parks—up to levels and densities unavailable to the private sector, provided it has the approval of the public agencies responsible for their regulation and control—the Land Use Commission and the board of the Department of Land and Natural Resources (Land Board), respectively.19 It may even introduce mobile homes to Hawaii, subject to certain conditions: "The authority may contract or sponsor with any county, housing authority, or person, subject to the availability of federal funds, an experimental or demonstration project for permanently fixed or mobile housing designed to meet the needs of the elderly, persons displaced by governmental action, low and moderate income persons or university and college students and faculty." 20 The HHA has sponsored a variety of individual demonstration projects (not mobile homes, however), but it has not built any large-scale projects. 21 The HHA's statutory exemptions from certain local land use controls include multistory housing for the elderly. While limited to certain areas, such housing is exempt from almost every other control. Thus, when it is built by the HHA on land zoned for apartment or business uses, or so designated on county general or development plans, multistory housing units for the elderly are exempt from all county zoning restrictions, including height limits. 22 Other housing projects developed under this specific statutory authorization may adopt their own land use development codes when authorized by the governor, including building, zoning, safety, subdivision, and health rules. These rules supersede all inconsistent county land use regulations unless a county

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disapproves them within forty-five days. 23 Apparently the HHA has rarely used this power.24

Land Reform and the HHA: Eminent Domain and Public Purpose Through the Land Reform Act, enacted in 1967, the State of Hawaii tackled the issue of changing the pattern of private land ownership in the state through government intervention.25 "Land, in common with other natural resources," reads the purpose clause of the act, "is of finite quantity; a fact particularly obvious in Hawaii. In recent decades there has been growing general agreement that the wise conservation, preservation, use and management of exhaustible natural resources such as land are matters mandating an active governmental role."28 The clause goes on to tie the need for land redistribution to the high cost of living, the lack of choice in the housing market, the monopolistic position of the large landholding estates, and the stability of the state's economy: There is an intimate relationship between the monetary values accorded land in Hawaii and the stability and strength of the State's economy as a whole. Land values, artificially inflated by the high concentration of ownership, skew the State economy toward unnecessarily high levels. The pervasive and substantial contribution made to inflation by high land values creates a potential for economic instability and disruption. Economic inflation, instability and disruptions have real and potential damaging consequences for all members of an affected society. Checking inflation, improving the stability of the economy, and forestalling economic disruptions are all productive of general benefit to all members of the Hawaiian society.

In particular, the act attempts to relate the conservation and preservation of land to the need for land reform: "The sound and wise conservation, preservation, use and management of land cannot be separated from the subject of patterns of land ownership." Having established the need for land reform, the act then addresses the question of public purpose and eminent domain: Changing present patterns of land ownership by allowing lessors under longterm leases of residential land to purchase in fee simple, absolute or otherwise, the land on which their homes are situated, through governmental intervention including exercise of the power of eminent domain to acquire fee simple title to such land and public financing of such purchase and such condemnation and payment through the issuance of bonds, the expenditure of general revenue funds, and the use of private funds which are at the dis-

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posal of the State, will help satisfy the pressing public necessity for a secure, strong and stable economy.27

Thus, the Land Reform Act requires the transfer of the fee simple interest in land—generally defined as the greatest legal interest that a private party may have in a parcel of land, conveying the largest possible number of user rights—from the owner-lessors to the lessee-owneroccupiers of the home on that land. 28 The HHA has begun condemnation proceedings in many parts of Oahu. This has resulted in the "voluntary" sale of several tracts of land by various estates and trusts to its residential leaseholders. It has also led to protracted litigation over the Land Reform Act's constitutionality, primarily between the Bernice R Bishop Estate, which owns much of the developed and developable residentially zoned land on Oahu, and certain of its homeowner lessees. Although rumored to be anxious to terminate much of its residential leasehold holdings as relatively unprofitable, the Bishop Estate has been so far unwilling to confer the benefits of fee ownership upon residential lessees living along Kahala Beach, an area that may one day be suitable for lucrative commercial resort development, although neither city nor state land use plans contemplate anything but single-family residential use in those areas. The Bishop Estate challenged the public purpose of the Act, and while the federal district court upheld its constitutionality ("[t]he State may use the power of eminent domain to redefine, rearrange, or redistribute interests in land. Throughout recorded history, the manner in which land is permitted to be held and used has been of critical importance to all members of a given society."29) it was reversed by the federal court of appeals in March 1983. 30 In a rancorously split decision the appeals court majority held that the state's purpose—land reform—was not public but rather private, and since governments and their agencies can only "condemn" (forcibly acquire) property for a public purpose, the statute was unconstitutional and void. Indeed, the majority characterized the act as an example of majoritarian tyranny. A strong dissent upbraided the majority for asking all the wrong questions and observed that federal courts rarely, if ever, question state declarations of public purpose in condemnation cases. With this the U.S. Supreme Court unanimously agreed. 31 On May 30, 1984, the court upheld the Land Reform Act, holding that where such taking of property was "rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause." 32 Observing that "the people of Hawaii have attempted, much as the settlers of the original thirteen colonies did, to reduce the perceived social and economic evils of a land

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oligopoly traceable to their monarchs,"33 the court held that regulating such oligopolies was a "classic exercise" of state police power, and the approach of Hawaii to correct the land oligopoly was rational. Just because the land so condemned was transferred to private homeowners did not make the purpose private rather than public. The result was still the elimination of "concentrated property ownership in Hawaii—a legitimate public purpose."34 The result of this decision is widely predicted to reduce the cost of leasehold land and vastly accelerate the leasehold conversion process in Hawaii. On the U.S. mainland, the result of this unusually broad decision may well be to substantially increase legislative interference with large landholdings of any sort, since there is nothing in its language that restricts its application to residential conversions in Hawaii. 35 Since the U.S. Supreme Court has upheld Hawaii's Land Reform Act, the steady conversion of vast tracts of residentially zoned land from leasehold to fee simple substantially will reduce the likelihood of redevelopment to commercial recreation, especially as and when coastal leasehold land is so converted. It is clearly more difficult for a would-be developer to assemble dozens of individually held parcels for redevelopment than for a major landlord-developer to simply terminate or permit to expire leases in a given tract, raze the houses, and start afresh.

The HCDA: A New Unit of Local Government? The HHA is not the only state agency with redevelopment powers. In 1976, the legislature created the Hawaii Community Development Authority (HCDA) for the purpose, among other things, of meeting community development needs such as housing, rental, commercial, and industrial facilities, and parks and open space. Aside from its extensive planning, land acquisition, and development powers, the HCDA may also establish community development rules that supersede all inconsistent local land use regulations.36 This makes HCDA a potentially powerful land development agency. The legislature established HCDA at a time when the current housing crisis was a public issue, and it had a particular redevelopment area in mind: the collection of commercial, industrial, and residential buildings near downtown Honolulu bordered by Punchbowl Street, Ala Moana Boulevard, King and Piikoi streets, and known as Kakaako (since expanded to include an additional 133 acres south of Ala Moana Boulevard bounded by Koula, Ilalo, Oue, and Keliikoe streets).37 It was the intent of the legislature to create an agency to plan and guide the development of Kakaako for a mixture of land uses.38 It was to proceed

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by means of a "joint development" approach, combining the "strengths of private enterprise" with "public development and regulation." 3 9 T h e eleven-member authority itself could do nothing until the legislature designated one or more community development districts. This it did, creating the Kakaako Community Development District in 1976. 4 0 T h e reasons given for the creation of the district directly address community development needs: (1) The Kakaako district is centrally located in Honolulu proper, in close proximity to the central business district, the government center, commercial industrial and market facilities, major existing and contemplated transportation routes and recreational and service areas; (2) Due to its present function as a service and light industrial area, the district is relatively underdeveloped and has especially in view of its proximity to the urban core where the pressure for all land uses is strong the potential for increased growth and development that can alleviate community needs such as low-income housing, parks and open space, and commercial and industrial facilities. (3) The district, if not redeveloped or renewed, has the potential to become a blighted and deteriorated area. Due to its present economic importance to the State in terms of industry and subsequent employment, there is a need to preserve and enhance its value and potential; (4) Kakaako has a potential, if properly developed and improved, to become a planned new community in consonance with surrounding urban areas. 41 T h e legislature also set out guidelines within which the H C D A must work. First, it directed that the Kakaako district be developed for mixed land uses, provided its "function as a major economic center" was preserved. 4 2 T h e legislature then listed a series of specific "development guidance policies" to govern the authority's Kakaako activities. (1) Development shall result in a community which permits an appropriate land mixture of residential, commercial, industrial, and other uses. In view of the innovative nature of the mixed use approach, urban design policies should be established to provide guidelines for the public and private sectors in the proper development of this district; (2) Existing and future industrial uses shall be permitted and encouraged in appropriate locations within the district. No plan or implementation strategy shall prevent continued activity or redevelopment of industrial and commercial uses which meet reasonable performance standards; (3) Activities shall be located so as to provide primary reliance on public transportation and pedestrian facilities for internal circulation within the district or designated subareas;

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(4) Major view planes, view corridors, and other environmental elements such as natural light and prevailing winds, shall be preserved through necessary regulation and design review; (5) Redevelopment of the district shall be compatible with plans and special districts established for the Hawaii Capital District, and other areas surrounding the Kakaako district; (6) Historic sites and culturally significant facilities, settings, or locations shall be preserved; (7) Land use activities within the district, where compatible, shall to the greatest possible extent be mixed horizontally, that is, within blocks or other land areas, and vertically, as integral units of multi-purpose structures; (8) Residential development shall ensure a mixture of densities, building types, and configurations in accordance with appropriate urban design guidelines; integration both vertically and horizontally of residents of varying incomes, ages, and family groups; and an increased supply of housing for residents of low- or moderate-income shall be required as a condition of redevelopment in residential use. Residential development shall provide necessary community facilities, such as open space, parks, community meeting places, child care centers, and other services, within and adjacent to residential development; (9) Public facilities within the district shall be planned, located, and developed so as to support the redevelopment policies for the district established by this chapter and plans and rules adopted pursuant to it. 4 3

The HCDA meanwhile developed a detailed Kakaako Community Development District Plan that, when stripped of its artists' renderings and explanatory language, is a zoning ordinance to be administered by HCDA. 4 4 The plan divides Kakaako into four "development" and two "public" districts. The four development districts, which comprise the bulk of Kakaako north of Ala Moana Boulevard, are all designated "mixed-use": that is, each of the zones will permit industrial, commercial, and residential uses, though each of the four "emphasizes" one or another of the three types of uses over the other two. Nevertheless, the result is that residential, commercial, and industrial uses will be permitted nearly anywhere in Kakaako—subject to the lengthy Community Development Rules and Regulations contained in chapter 4 of the plan. Essentially, the rules and regulations prohibit development of any sort without the permission of the HCDA. There are two ways of obtaining that permission: (1) Obtain a "conformance certificate" issued by the HCDA after project "eligibility" is first determined by the HCDA executive director. Such a certificate is obtainable if, but only if, a proposed project conforms to height, bulk, density, parking, performance, and "other appropriate regulations" listed under each of the

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four development districts. (2) Obtain a "planned development permit," required for any development in any district planned to exceed a height of 40 feet or a floor area ratio of 1.5 on a lot smaller than 40,000 square feet, which is just under one acre. Additional public facilities, amenities, and "reserved housing units"—an odd admixture of "affordable" and "low-income"—will be required in addition to the normal requirements for a "conformance certificate." Whether this standard zoning process will produce anything like the trendy renderings of "urban form" shown in the Kakaako plan (and copiously reproduced in both of Honolulu's daily newspapers) remains to be seen. Meanwhile, there is considerable community concern for what will become of Kakaako. 45 For an area about to be redeveloped, Kakaako is surprisingly lively— both as a commercial and residential center. It is home for approximately 2,200 people, who live in everything from multistory condominiums to second-floor walk-ups. It is also the employment center—with 1,500 businesses—for fully 10 percent or 18,000 of Honolulu's work force. 46 How and to what extent this may change depends in large part on how HCDA implements its plan. The HCDA must also develop a districtwide public facilities improvement program, the costs of which are to be assessed against the properties in the district specially benefiting from them. Its community development rules, which now govern the development of Kakaako, may supersede all contrary local land use regulations. 47 Finally, the HCDA may acquire land (including land already devoted to a public use) by eminent domain if necessary. Once so acquired by HCDA, the land may not be "condemned back" by another public body. Miscellaneous provisions specifically require HCDA to require the dedication of land and facilities, or take cash in lieu thereof, from developers as a condition of property development and authorizes HCDA to "deal" in real property—including the selling or leasing of part of the project "to any persons," virtually upon any terms it chooses.48 While the state clearly created the HCDA to plan and develop Kakaako, Kakaako's future may well be shaped by other land use controls, most notably those of the City and County of Honolulu either through its zoning and planning authority or through the Coastal Zone Management Program, under which Kakaako is designated an area of particular concern. 40 Indeed, in the 1970s, the City and County established interim development controls until permanent zoning was enacted. This it did by means of a special permit district, the "Kakaako Special Design District" (KSDD), which established five land use districts or "precincts" for Kakaako that supersede the underlying zoning found

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in the Honolulu Comprehensive Zoning Code (CZC) and accompanying zoning map. The five precincts are: mixed use, marine, industrial services, waterfront industrial, and public use.50 Residential uses are permitted only in the first. Two precincts permit buildings up to 350 feet. For land to be eligible for development in Kakaako under the KSDD, certain infrastructure facilities (streets, pedestrian and bicycle circulation, sewers and water) must be either in place or earmarked for installation to coincide with the construction schedule of the proposed project. Next, most projects must obtain a development conformance certificate, though many—including much residential development— would be exempt.51 It will be interesting to see which plan predominates now that the governor has approved a state plan for Kakaako. While the impact of housing and redevelopment on the use of land in Hawaii is hardly inconsiderable now, the prospect is for it to become even more pronounced in the coming decade. A foretaste of things to come might have been gleaned from the Hawaii Housing Authority's State Housing Plan, one of the ten functional plans passed by the 1984 legislature as required by Act 100, the State Plan. Binding on all state (and affecting all county) agencies once passed by concurrent resolution, the Housing Plan originally set out a series of implementation measures and policies.52 However, the new and considerably shortened version of this functional plan eliminates many of the major policy directions contained in the 1980 and 1981 drafts. As noted in chapter 3, the state passed the so-called "Ohana Zoning" bill in the 1981 legislative session.53 Basically, the bill requires the counties to amend their zoning ordinances to permit two-family dwellings in all residentially zoned districts, provided a zoning lot can accommodate such a second dwelling without violating reasonable yard and parking requirements. Two counties—Honolulu and Hawaii—have done so. How the counties will implement this statute, designed to add significantly to the housing stock of Hawaii by promoting rental or family units, remains to be seen. Finally, the issue of affordable housing in Hawaii was addressed in 1981 and 1983 by a series of variously sponsored bills in Honolulu that would require a percentage of low-cost housing to be constructed in private residential (and some commercial) developments as a condition of development permission. While none of these bills passed the Honolulu City Council by the close of 1983, it is widely expected that some such measure will continue to be presented as a means for reducing the minimum cost of housing, at least in Honolulu.54 The chances for success

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were increased when the widely respected Supreme Court of New Jersey approved such "mandatory set-asides" as a technique for forcing recalcitrant municipalities to accept their reasonable fair share of low and moderate income residents.55 However, in Honolulu it appears to be the development community and not the City and County that is dragging its feet. In sum, Hawaii's housing programs, while more or less in the national mainstream from the federal perspective, have considerable potential for affecting the use of land, especially given such programs as the Hawaii Community Development Authority, the state functional plans for housing, and Ohana zoning. All these provide measures that either override or substantially supplement local land use controls, shifting significantly the prevailing patterns of land use in Hawaii.

6 Historie Preservation: Recapturing the Past A page of history is worth a volume of logic. New York Trust Co. v. Eisner (1921)

T h e preservation of historic buildings and archaeological sites has become something of a national crusade. The reasons range from the desire to preserve links with the past to the retention of tourist attractions. There are essentially three major elements in modern historic preservation programs: (1) regulation to prevent damage or destruction of private sites, (2) rehabilitation to encourage re-use of private sites, and (3) the protection of sites from federally funded redevelopment or public works projects through "listing." All three are critical for a successful program. While some sites are also saved through outright public acquisition, historic properties are expensive to purchase and expensive to maintain. Therefore, in times of tight budgets and increasing demand upon government at all levels, reliance on such acquisitions to save a substantial share of historic sites is probably futile.

The Basic Program: What's Possible REGULATION

The essential issue in any regulatory program is the extent to which the regulation may permissibly restrict private action. So it is with historic preservation. The issue of private restriction is particularly acute because health and safety—traditional bases for regulation—are not affected by the damage or destruction of a historic site. This leaves public welfare, a vaguely defined concept that is often used to justify regulatory systems when all else fails. It is the basis for most historic preservation laws, which prevent the alteration (and sometimes require the maintenance) of a historic structure or site whether in public or private hands. Courts have been surprisingly sympathetic to such regulation. Even early cases tended to support designation and regulation of historic sites by qualified public bodies. 1 But the full extent to which the police

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power could be invoked to prevent an owner from altering or demolishing them was vastly enlarged in 1978 by the U.S. Supreme Court in its landmark Penn Central Transportation Co. v. City of N.Y.2 There, the court upheld a New York City ordinance that heavily restricted the development potential of Grand Central Station solely because of its historic significance. The court recounted those aspects of the regulatory scheme that made it defensible: expertise and due process in both the selection of historic sites and the granting (or refusal) of a "certificate of appropriateness" for exterior modifications or demolition; economic viability of the site in its present condition; availability of tax relief for designated properties; ability of the private owner to transfer air development rights to nearby properties. 3 State courts were quick to seize upon Penn Central as a precedent for other similar historic preservation schemes, with the result that most programs that (1) use defensible criteria (or experts) in identifying historic sites, (2) provide fair procedures for landowners to seek permits for alteration, and (3) leave some economic use of the site have been upheld. 4 REHABILITATION AND R E - U S E

Regardless of the regulatory framework, a usable building is more likely to be preserved than one that depends solely on the force of the law for its maintenance. Thus, the historic preservation movement has increasingly shifted to incentives for rehabilitation and re-use, relying primarily on how-to programs and manuals and tax incentives. 5 It is in this latter category that the law, until recently, provided inducements for the commercial rehabilitation and re-use of old buildings. There are two provisions of our national tax structure that give limited tax breaks to depreciable structures (that is, not personally occupied residences) either listed on the National Register of Historic Places (discussed below), in a historic district that is so listed, or otherwise recognized by the U.S. Secretary of the Interior under an approved state or local preservation statute. 6 Such certified historic structures may (1) be eligible for accelerated depreciation for approved (by the interior secretary) rehabilitation projects and (2) be eligible for five-year amortization for approved rehabilitation expense. Furthermore, the owner is eligible for a 10 percent tax credit on approved rehabilitation of certain historic structures. In addition, the tax consequences of demolishing a historic structure are severe. The 1976 Tax Reform Act provides that an owner or lessee of a certified historic structure cannot deduct expenditures or losses resulting from demolition of the structure. The Act also prohibits the use of accelerated depreciation for any structure in whole or in part con-

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structed, reconstructed, erected, or used on a site that was occupied by a certified historic structure that has been demolished or substantially altered other than by a certified rehabilitation.7 It is, however, possible that recent "owner consent" amendments to the National Historic Preservation Act (discussed briefly below), have softened these consequences, applying as they apparently do to listed rather than eligible buildings, to the point of irrelevance.8 Moreover, 1981 tax law amendments have further eroded the value of such federal tax incentives.9 PRESERVATION THROUGH LISTING OR "DEMOLITION DELAYED"

The National Historic Preservation Act (NHPA) passed in 1966 coupled with the National Environmental Policy Act (NEPA) passed in 1969 provides some measure of temporary protection for historic sites both listed or eligible to be listed on the National Register of Historic Places, if a threatening project or development utilizes federal funds or otherwise significantly involves a federal agency.10 Thanks to the pervasiveness of the federal government in much of Hawaii's development activity, this temporary protection is likely to be invoked quite often.11 The National Register of Historic Places comprises those historic resources, districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, or culture, listed according to the following criteria: That quality of significance in American history, districts, sites, buildings, structures, and objects of State and local importance that possess integrity of location, design, setting, materials, workmanship, feeling and association, and: (1) that are associated with events that made a significant contribution to the broad patterns of our history; or (2) that are associated with the lives of persons significant in our past; or (3) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or that possess high artistic values, or that represent a significant and distinguishable entity whose components may lack individual distinction, or (4) that have yielded, or may be likely to yield, information important in prehistory or history.12

It is maintained by the secretary of the U.S. Department of the Interior, from sites nominated by federal agencies, state historic preservation officers, and the National Trust. The National Historic Preservation Act is the latest in a series of federal laws directed toward the survey and preservation of historic sites.13 Its most salient feature for providing historic sites protection is the requirement that federal agencies "take into account" the effects of their actions on historic sites that are either registered or eligible for reg-

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istration in the National Register. A federal Advisory Council on Historic Preservation must be permitted to comment on the proposed action.14 It is up to the Secretary of Interior, who applies the listing criteria, to decide whether a site is eligible for listing, which entitles the site to the same level of protection as a listed site. What the NHPA does is buy time. There is no legal requirement that the federal agency abandon its undertaking, even if the Advisory Council strenuously objects. An example is Section 4(f) of the Department of Transportation Act of 1966, which forbids the use of either public or private land from a historic site for federal or federally assisted highway purposes unless (1) there is no "practicable or feasible" alternative, and (2) all "possible" planning to minimize harm to the site is undertaken.15 Such consideration of historic sites is not confined to NHPA. The National Environmental Policy Act requires that before the undertaking of a federal action that significantly affects the environment, an environmental impact statement (EIS) must be filed with the federal Council on Environmental Quality (CEQ), located in the executive office of the president.16 Moreover, under recent amendments to the CEQ's guidelines for EIS preparation, an environmental assessment of some sort must be made for virtually every federal action to determine its significance and the probable effect on the environment, which assessment is then used to determine whether a full EIS is warranted.17 NEPA is of considerable help in the buttressing of protection for historic sites because it states that one of the environmental policies to be effectuated is to "preserve important historic . . . aspects of our national heritage."18 Indeed, a federal court held in 1979 that the U.S. Department of Housing and Urban Development had to prepare an EIS on proposed destruction of register-eligible properties in an urban renewal project so long as it has any discretion over it. 19 The Stop H-3 Association v. Coleman case in Hawaii is another example of the interplay between NHPA and NEPA.20 At issue was the legality of a federally funded highway route passing within a few feet of a petroglyph in Moanalua Valley on Oahu. In holding that both NHPA and NEPA were triggered, the court held that before the transportation secretary may authorize the construction of a highway through a site eligible for listing on the National Register, he must first find that there is no prudent and feasible alternative. The state and the federal governments then switched the route to the nearby Halawa Valley, only to find that the original injunction banning construction in Moanalua Valley was also applicable there.21 More complicated is the status of the island of Kahoolawe in Maui County. Literally awash in heiaus (places of worship), adze quarries,

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and petroglyphs, the small island has been a U.S. Navy bombing target for the better part of two decades.22 After protracted litigation concerning the need for a federal environmental impact statement for the navy to continue bombing the island, the navy conducted a four-year, $600,000 survey, nominated 171 sites to the National Register of Historic Places, and undertook to restrict its bombing to those parts of Kahoolawe that were free of such sites.23 This failed to satisfy the Protect Kahoolawe Ohana, an organization seeking to end the bombing, which observed that the number of sites so chosen was far fewer than those that had been uncovered and that minimally every site should be listed. In fact, the keeper of the National Register listed the entire island in early 1981.24 While such listing does not prevent the navy from continuing to use the island as a practice target (apparently on the ground that it has no other suitable site and national security requires that it practice on something), the National Register's Advisory Council will apparently help plan for protection of important areas, and the navy must at least consult with the council before continuing to bomb. 25 Historic Preservation in Hawaii That Hawaii has many historic sites worth preserving is beyond question. Entirely aside from the highly publicized attempts to preserve important structures and sites such as the Royal Hawaiian Hotel in Waikiki and the island of Kahoolawe, over six hundred sites were once classified and listed on local and national registers of historic places.26 But while procedural irregularities have resulted in the "de-listing" of hundreds of these sites, such listing has only marginal protective significance. Listing results in virtually no state or local regulation of a site. At best, private owners of a listed site must merely provide the state with notice of an intended alteration or demolition and under certain circumstances file an environmental impact statement. Either or both merely delay the action. Only when such sites also fall within the boundaries of either county-enacted special zoning districts or state conservation districts is there any regulatory protection. Hawaii's constitution specifically links the police power with historic site preservation: "The State shall have the power to conserve and develop objects and places of historic or cultural interest and provide for public sightliness and physical good order. For these purposes private property shall be subject to reasonable regulation."27 Pursuant to this broad constitutional mandate, the State of Hawaii has enacted a historic preservation program of sorts that deals with historic sites that are (1) publicly owned and (2) privately owned. While it is the latter in

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which issues of public control and the limits of the police power usually arise, the number of sites on public lands makes the first category an important element in surveying the manner and effectiveness of historic preservation in Hawaii. O N PUBLIC LANDS

Several state statutes deal with the classification and regulation of historic sites on state lands. One places responsibility for their management in the Department of Land and Natural Resources (DLNR). DLNR may condition or restrict development on such sites and veto any transfer of state control over such lands. Most of this authority is lodged with the Board of Land and Natural Resources (Land Board), which is the governing body of DLNR, and its chairman. It may approve (or not) any state or county-commenced project that "may" affect such a site. A refusal on the part of the Land Board to approve is appealable to the governor, who may request the State Advisory Council on Historic Preservation to hear the appeals. 28 DLNR may also classify natural features that are either historically or archaeologically significant as a natural area reserve. 29 DLNR promulgates and administers rules concerning permissible uses based upon recommendations of a Natural Area Reserve System Commission, which is composed of eleven members, six of whom are trained in wildlife management, marine biology, botany, forestry, and geology. Finally, among the purposes for which DLNR may acquire land is to preserve lands with "historic value." 30 The governor is empowered to classify landmarks, historic and prehistoric structures, and other objects of historic interest on state land to be state monuments. 31 O N PRIVATE LANDS

Probably the most significant authority that the state exercises over historic sites on private property is listing on the Hawaii Register of Historic Places (State Register). The agency responsible for such listing is the Historic Places Review Board, which also recommends sites for inclusion on the National Register. Placed within DLNR for administrative purposes, the ten-member board is appointed by the governor.32 Its criteria for registration and nomination are adopted pursuant to statutory direction: The quality of significance in Hawaiian history, architecture, archaelogy, and culture is present in districts, sites, buildings, structures, and objects of state and local importance that possess integrity of location, design, setting, materials, workmanship, feeling, and association, and (a) that are associated

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with events that have made a significant contribution to the broad patterns of our history; or (b) that are associated with the lives of persons significant in our past; or (c) that embody the distinctive characteristics of a type, period, or method of construction, or that represent the work of a master, or represent a significant and distinguishable entity whose components may lack individual distinction; or (d) that have yielded, or may likely yield information important in prehistory or history.33

There follows a series of exceptions for cemeteries, birthplaces, and properties owned by religious institutions, and properties that have achieved significance only in the past fifty years. While nominations for listing are customarily made by the State Historic Preservation Officer (presently the chairman of the Land Board), anyone may nominate a site. 34 Being listed on the State Register, while hardly a paragon of strength, does provide for a measure of temporary site protection. An owner of a listed site must notify and secure the concurrence of DLNR for any proposed construction, alteration, transfer, or improvement that will affect a historic property. In the event DLNR approval is not secured, however, the owner need only wait ninety days before altering or demolishing a site. During that time DLNR may commence condemnation proceedings or undertake investigation, recordation, preservation, and salvage of "any historical information deemed necessary to preserve Hawaiian history" (including, presumably, the moving of a historic structure from the premises). Violation of these regulations results in a modest fine of up to $1,000 per offense. 35 A cause célèbre in both local and national historic preservation circles since 1979 has been the listing or registration on the National and Hawaii Register of the Royal Hawaiian Hotel (affectionately known as the "Pink Palace") in Waikiki. Though itself subject to critical historic preservation comment during construction (several structures deemed to be historic were demolished to make way for it) the Royal Hawaiian was finally listed in early 1980 on the State Register and nominated for the National Register. 36 The latter has been held in abeyance pending the outcome of the appeal of the current owner (Kyo-Ya Co., Ltd.) from the decision of the Historic Places Review Board to list the building on the Hawaii Register. 37 In a widely reported case, the court upheld that listing. 38 Kyo-Ya Co. has appealed. Not so famous outside of Hawaii, the Alexander Young Building in Honolulu also became something of a cause in the historic preservation community before its demolition. Once a luxurious downtown hotel (for which Honolulu has yet to find a replacement) and officers' quarters, the 77-year-old edifice was last used as an office building. Al-

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though listed on both the State and the National Register of Historic Places, there was considerable division in the community over its historic value. It was described as both a "nostalgic grey giant" and a "renaissance monstrosity." The State Department of Land and Natural Resources opted not to purchase the building, and its owner, the Northwestern Mutual Life Insurance Co., demolished it in 1980 to make way for a 29-story office building and three-quarter acre park. Both daily newspapers in Honolulu favored its demise, given the owner's plans for developing the site, and many applaud the addition of open space in the downtown business district. 39 Another statute provides incentives to private owners of sites to help preserve them. While not particularly generous, it will probably account for as much state-fostered historic preservation as the process of listing described above. Under a section of the state's tax code, owners of listed sites are exempt from real property taxes for that part of the site dedicated to public use. 40 The State Director of Taxation must, in addition, find that the benefit to the public from said dedication is equal to the foregone property taxes. The initial period of dedication is ten years, renewable indefinitely. Given the narrowness of the exemption, it is not surprising that little use has so far been made of it. The state also affects the use that the owner of a listed site can make of his land by virtue of certain classification criteria under Hawaii's landmark statewide zoning act discussed in chapter 2 (Act 187). The land in one of the four classifications into which all state land is classified—the conservation district—is regulated by DLNR's Land Board under its "Regulation Four." The uses listed for this district are restrictive. Among the lands that are required to be classified into this conservation district by the State Land Use Commission are "areas necessary for preserving historic areas." 41 Under certain circumstances or conditions a historic site may also be subject to review under the Hawaii Environmental Policy Act (HEPA). 42 The environmentally significant actions that can trigger an environmental impact assessment requirement (discussed in chap. 9) include proposing "any use within any historic site as designated in the National Register or Hawaii Register." In the assessment, the "historic perspective" must be addressed as part of the project description. The environment in the vicinity of the proposed action must also be described, including "natural or man-made resources of historical or archaeological significance." 43 Once such an assessment is made, however, there is nothing to prevent an adverse use from proceeding. Finally, the State's Coastal Zone Management Act—surprisingly— deals with the preservation of historic sites.44 Each county administers extensive coastal zone special management areas (SMA) under state

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statutory standards through the requirement of an SMA permit for all developments. One of those standards requires a proposed development to be consistent with the state's statutory objectives, policies, and SMA guidelines. Among the objectives is one calling for the county to "protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone mangement area that are significant in Hawaiian and American history and culture." 45 This gives counties the right to deny a permit for any development that threatens a significant resource as defined in the Act. There is a question of what is significant, however. Presumably, listing on either the Hawaii or National Register raises a presumption in favor of "significance" sufficient to actuate this part of the CZM program's regulatory requirement. On the other hand, this prompts another question— whether the lack of such listing raises a contrary presumption against significance. (And what about sites that have been removed from the list for procedural irregularities?46) The listing is merely a shorthand indication that the threshold of significance has been reached. Yet one more state statute affects the preservation of historic sites: Act 100, the State Plan Act. Act 100 contains a number of broad policies, objectives, and goals, such as the following that address historic preservation. Objectives: 1. Planning for the state's physical environment shall be directed towards achievement of the objective of enhancement of Hawaii's . . . historic resources. Policies: 1. Promote the preservation and restoration of significant natural and historic resources. 2. Provide incentives to maintain and enhance historic, cultural and scenic resources. 3. Protect those special areas, structures, and elements that are an integral and functional part of Hawaii's ethnic and cultural heritage. 47 These criteria are all binding on both state agencies and on the counties' development planning and implementation processes, all as explained in chapter 2. Moreover when taken with the aforementioned CZM requirements, these provide yet another layer of protection of historic sites in the coastal zone. As described in chapter 2, all state and local government agencies are bound by Act 100 in making land use decisions. Certain words and phrases are therefore critical: what does "promote" preserva-

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tion of historic resources mean? What are "historic resources"? Do such resources include anything beyond listed sites? Is there any significance to the absence of the word "historic" from the third policy quoted above —the only one that appears to guarantee protection, or are historic sites included in the phrase "special areas, structures and elements that are an integral function of Hawaii's ethnic and cultural heritage"? Answers to these and other questions may be deferred until implementation of the state functional plan on historic preservation, which was finally approved by the legislature in 1984. The plan adds little additional regulatory muscle with respect to historic sites on either public or private land. Most of its objectives and policies are directed toward the compilation of records, the taking of inventories, the preservation of records, skills, and oral histories, and streamlining of the existing system of nomination and listing. Some thought has been given in the plan to more incentives to induce owners to acquiesce in the listing of sites.48 A former general objective "to implement adequate legal measures to minimize adverse impacts to registered or potentially significant resources," has been deleted in the approved and vastly shortened version of the plan. 49 What little regulatory guidance there was in previous drafts has also been entirely deleted, rendering it virtually without value for preventing damage or destruction to privately owned historic sites or structures.

The Legislative Options The State has turned much responsibility for historic site protection over to the counties.50 Each of Hawaii's four counties has passed historic preservation zoning schemes offering various degrees of protection to historic sites within a historic or scenic district. What follows is a summary of the pertinent local schemes in each county. HONOLULU

The City and County of Honolulu essentially makes use of a special zone technique for historic preservation in two categories: the historic, cultural, and scenic district (HCSD) and the special design district (SDD).51 The HCSD is essentially an overlay zoning district: the underlying district classification (residential, commerical, and so forth) restrictions and standards apply unless in conflict with the provisions of the zone that is laid over the existing zoning map. The city Department of Land Utilization is required to undertake a series of studies before the City Council can designate a site as an HCSD. 52 The DLU director both delineates the prospective boundaries of the HCSD and prepares a regu-

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latory scheme to apply to it. These are then approved by ordinance by the City Council. One of the elements of an approved HCSD is usually a design control plan with "preservation requirements." 53 The key to the working of the HCSD is the need for a "certificate of appropriateness" from the director of DLU for any project (except city and state projects) that affects the exterior appearance of the district. Thus, the DLU director could deny a certificate of appropriateness to a project for failure to meet preservation requirements for any demolition or alteration of historic sites in an HCSD. A second measure for historic site preservation available to the City and County of Honolulu is the special design district (SDD).54 Like the HCSD, an SDD is a zoning district that is created and mapped by the council. It is, however, a so-called "floating" zone rather than an overlay: once mapped, it takes precedence over any previous zone district regulations and classifications. Procedurally initiated by either the City Council, the DLU, or a landowner, the proposal to establish an SDD is first reviewed by the DLU in much the same fashion as is the HCSD. After consultation with affected and interested citizens, organizations, and agencies, the DLU then sends a draft SDD ordinance to the Planning Commission, which holds a hearing and submits its findings and recommendations to the council. The council then conducts a second public hearing and if it finds that the proposed SDD conforms with the standards and procedures in the CZC, must establish it. As with the HCSD, the DLU approves all projects within an SDD by issuing a Development Conformance Certificate for all but those projects it finds to be "insignificant." 55 Among the seven area classifications to which an SDD is limited (by ordinance) is what is known as a "restoration and redevelopment" area roughly defined as older urban communities in "dire need" of major restoration, redevelopment, and renovation. 56 Through its power and authority to establish design and land use controls for such areas, the council may restrict the alteration or demolition of historic sites, and so preserve them. The requirement of a Development Conformance Certificate provides yet a further check on the alteration or demolition of historic sites within any SDD. KAUAI

Historic preservation in Kauai County is a blend of zoning ordinance and development plan. The pertinent provisions of its zoning ordinance (which set out special districts in part created to preserve historic places) may be supplemented by area-specific development plans, the provi-

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sions of which not only supplement but supersede any conflicting provision of that zoning ordinance. The county zoning ordinance deals with historic preservation in two special zoning districts: special treatment districts and special planning areas. Both are overlay districts. 57 Special treatment districts, drafted to designate and guide development in areas with "unique or critical cultural, physical or locational characteristics," are specifically authorized for those areas with "significant historic background, structures or land forms." The district is created by the County Council and recorded on the county's zoning map. All "uses, structures or development" require a special use permit, except repairs or modifications of land and existing structures that do not substantially change exterior form or appearance. 58 The special planning area is, in contrast, a creation of the Plan Commission, which "establishes" and "may" formulate development plans for it. Such development plans "shall" include "wherever appropriate and practical," among other things, "a review of the . . . historic resources of the area." 59 The critical tool is the development plan, which, by incorporation into the county zoning ordinance, nominally supersedes any conflicting district regulations: "After the Council adopts a Development Plan for a Special Planning Area, no development, use or activity may be undertaken in such area that is contrary to the Development Plan." 60 Through a series of development plans passed by the County Council, Kauai has designated a number of historic sites and districts, although it is not altogether clear what regulatory mechanisms have been added. Specific sites are designated at Hanalei, Wailua, and the Napali Coast. HAWAII

Historic preservation in Hawaii County, as in Kauai and Maui, depends on what the county's general plan contains. The county-adopted (by ordinance) general plan is required to contain development objectives, standards, and principles "which shall be consistent with . . . the preservation of . . . historic sites." The county charter also makes it clear that "no public improvement or project or subdivision or zoning ordinance shall be initiated or adopted unless the same conforms to and implements the general plan. 61 Such plan provisions as apply to historic preservation therefore have the force of law not only in addition to but, in case of conflict, also superior to any land development ordinance to the contrary. The Hawaii general plan has much to say about historic preservation, all of which, as indicated by the aforementioned charter language, is binding upon the council, Plan Commission, and other land use decision makers. Probably the most significant provisions are the goal to

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"protect and enhance the sites, buildings and objects of historical and cultural importance to Hawaii" and the policies that specifically address historic preservation: It is recognized that historic sites need to be evaluated and protected. The County of Hawaii shall incorporate sections on historic sites, buildings and objects into appropriate ordinances. It shall be the policy of the County of Hawaii to require developers of land either public or private to provide a historical survey prior to the clearing or development of land when there are indications that the land under construction has historical significance. Public access to significant historic sites and objects shall be acquired. 6 2

But while the goals and policies of the general plan are "filled in" by both development plans and ordinances, there is virtually no language in either to implement the relatively strong charter and general plan mandate to preserve historic sites. Most of the development plans—like those of Honokaa and Kailua—deal primarily with the acquisition or rehabilitation of historic districts.63 The Zoning Code merely sets up a Design Review Commission for the Kailua Village Special District. 64 There is nary a historic district or site preservation scheme or permit requirement to be seen. Given the strong charter and plan mandate, Hawaii County could do more. As one development plan pithily states, "the County should take the lead in determining methods for historic preservation. The County of Maui Historic Districts Ordinance . . . and the Honolulu Comprehensive Zoning Code (CZC) could be used as a guide." 65 MAUI

Maui County has the weakest plan implementation language but the strongest ordinance relating to historic preservation. The Maui Charter provides for a general plan, but, unlike Hawaii, it says nothing about historic preservation. 66 Moreover, the charter appears to make the plan advisory only. There is no language like that in the Hawaii and Honolulu charters giving the plan legal precedence over prospective land use decisions.67 Indeed, the general plan itself deals with historic preservation by name only once, under policy number 4: "Preserve significant historic sites."68 On the other hand, Maui has adopted a full-blown historic district ordinance complete with a historic district commission, historic districts (three), and detailed design and use standards. The ordinance creates a nine-member County of Maui Historic Commission, one member of which must be the county planning director. The primary duty of the

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commission is to review all plans for the construction, reconstruction, alteration, repair, moving, or demolition of structures in the historic districts. Unless the Commission issues a "certificate of approval," the county superintendent of building inspection cannot issue a building permit for the construction, alteration, demolition, repair, or moving of any structure. A historic district map (a part of the ordinance) depicts three historic districts, two in Lahaina and one in Wailuku.69 Finally, there are regulations for the architectural styles and uses for the commission to use as standards for granting certificates of approval. They require the exterior of all new buildings to be in keeping with the architectural style of the district so as not to impair the value of other buildings in the immediate vicinity. For Historic District no. 1 and Historic District no. 2, the preferred styles of architecture are "Native Hawaiian," nineteenth-century New England, "Monterey" or western, and for single-family dwellings, "any architectural style prevalent during the 19th century in Lahaina or which evolved from 1900 to the present in Lahaina, being unpretentious in style and painted in mute tones." For Historic District no. 3, the restrictions are largely stated in the negative. European, Asian, excessively decorated, flat-roofed, modernistic, and gaudy styles are prohibited.70 The use regulations list specific criteria for such as height (two stories, 35 feet for Lahaina) and incorporate by reference portions of plans and reports prepared by various groups and consultants.71 Historic preservation, and the controversy over it, is alive and well in Hawaii. The state legislative protection available is weak as applied directly, but there are some linkages to other laws that are variously triggered when a historic site is listed and which guarantee a measure of protection to certain sites. Nevertheless, it is the counties that have taken the major role in enacting ordinances with the most promise for preserving Hawaii's historic heritage. The state could do far more, especially given the constitutional mandate that other states, with stronger preservation laws, lack. Given the strong language of the Penn Central decision from our nation's highest court upholding historic preservation restrictions prohibiting demolition altogether, it is clear that there would be no legal barriers to more forceful implementation of that state constitutional mandate that "private property shall be subject to reasonable regulation" in order to "conserve and develop objects and places of historic or cultural interest." So it has been written; so it should be done.

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Managing the Coastal Zone We take the view that environmental management of coastal waters and shorelands has as one of its fundamental goals the maintenance of coastal ecosystems at the highest achievable level of quality, which means as near the natural condition as possible. . . . [But] [h]ow far short of this goal any management program falls must of necessity be decided by society not by science. Clark, Coastal Ecosystems

Coastal zone management has been the subject of state and local regulation through much of the last two decades in the United States. This is not particularly surprising since fully three-quarters of the population of the United States lives in the coastal zone.1 However, it was not until the mid-1970s that a national program of coastal zone management commenced under the federal Coastal Zone Management Act (CZMA).2 Designed largely to encourage states in coastal areas to plan, manage, and regulate the use of land therein, the CZMA provides funds for the creation and implementation of a state coastal zone management plan, on the condition that they follow various coastal land regulatory and management guidelines. In 1975, the State of Hawaii responded to this federal coastal zone initiative, first with a Shoreland Protection Act, then with a coastal zone management act of its own. The Hawaii Coastal Zone Management Act (HCZMA) is applicable to Hawaii's vast coastal areas, in which much intensive development has occurred in the past and which continue to be subject to intense development pressures.3 What follows is a summary of the federal program of which Hawaii is a part, Hawaii's state and local response to the federal coastal zone program, and a brief look at what little judicial comment there is on both.

The Federal Framework and the Hawaiian Response The federal Coastal Zone Management Act of 1972 was passed during the heady days of national land use and environmental activism in response to competing development and preservation demands on the

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nation's coastal areas. Congress found that population growth and development in coastal areas resulted in the destruction of marine resources, wildlife, open space, and other important ecological, cultural, historic, and esthetic values. 4 In response, Congress created a management and regulatory framework and appropriated money for the development and implementation of state-run coastal zone management programs. The framework is imposed if, but only if, a state chooses to accept the money—and most of the thirty-five eligible coastal states and territories have so chosen. 5 The program consists of three parts: a management plan/program, implementation regulations, and consistency regulations. T H E PLAN/PROGRAM

The CZMA requires a state's coastal zone management program to include nine planning elements, the most important plan themes of which are a definition of the boundaries of that part of a coastal zone that is subject to the program, objectives and policies for coastal area protection, a statement of permissible land and water uses, and the identification of special management areas. 6 The program's coastal zone boundaries are defined as coastal waters and adjacent shorelands that are strongly influenced by each other. 7 While it is not particularly difficult to find the seaward boundary, the trick is to identify the vaguely defined inland boundary. The zone extends seaward to the outer limit of the U.S. territorial sea, but the inland boundary of the zone is based on the extent of area necessary to control shorelands, the use of which have a direct and significant impact on coastal waters. 8 According to federal regulations, areas that might be included are areas of particular concern (discussed below) —salt marshes and wetlands, beaches, state-determined floodplains, islands, and watersheds. However vague the regulations, a state must define its inland boundary sufficiently precisely that "interested parties" can determine whether their activities are controlled by the management program. 9 CMZA regulations also set out criteria for determining permissible uses subject to the management program. 10 The process of defining the Hawaii coastal zone boundary in the late 1970s provoked one of the more spritely disputes in recent Hawaii statecounty history. The seaward boundary was easy: the seaward limit of the state's jurisdiction, except those areas owned, leased, held in trust, or otherwise subject to the power and authority of the federal government. 11 But except for some state forest preserve lands and federal lands, the inland boundary stretches across the entire land area of the state. 12 This is not so extensive for regulatory purposes as it first appears.

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The whole of the coastal zone boundary area is subject to the HCZMA objectives and policies, but the control and management of areas requiring special management attention, where special permits from county agencies are required, cover a far smaller area. The objectives and policies mandated by the CZMA are set out in detail in Hawaii's Coastal Zone Management Act. Covering recreational, historic, scenic, and open space resources, coastal ecosystems and hazards, economic uses, and development management, they are enforced through a complicated networking process discussed later in this chapter. They apply to the entire coastal zone rtianagement area. For example, the objective of protecting scenic and open space resources reads "protect, preserve, and where desirable, restore or improve the quality of coastal scenic and open space resources."13 This leads to the following policies: (a) Identify valued scenic resources in the coastal zone management area; (b) Insure that new developments are compatible with their visual environment by designing and locating such developments to minimize the alteration of natural landforms and existing public views to and along the shoreline; (c) Preserve, maintain, and where desirable, improve and restore shoreline open space and scenic resources; and (d) Encourage those developments which are not coastal dependent to locate in inland areas.14

Areas requiring special management attention because of unique coastal values or characteristics or because the area faces pressure that requires detailed attention beyond the general planning and regulatory systems of a typical management program must be designated by a management plan. These are called "areas of particular concern" (APCs) and "special management areas" (SMAs) and are the lynch-pin of the Hawaiian response to the CZMA's requirements. Their boundaries are established in accordance with the following criteria: 1. Areas of unique, scarce, fragile or vulnerable natural habitat; unique or fragile, physical figuration (as, for example, Niagara Falls); historical significance, cultural value or scenic importance (including resources on or determined to be eligible for the National Register of Historic Places); 2. Areas of high natural productivity or essential habitat for living resources, including fish, wildlife, and endangered species and the various trophic levels in the food web critical to their well-being; 3. Areas of substantial recreational value and/or opportunity;

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4. Areas where developments and facilities are dependent upon the utilization of, or access to, coastal waters; 5. Areas of unique hydrologic, geologic or topographic significance for industrial or commercial development or for dredge disposal; 6. Areas or urban concentration where shoreline utilization and water uses are highly competitive; 7. Areas where, if development were permitted, it might be subject to significant hazard due to storms, slides, floods, erosion, settlement, and salt water intrusion; 8. Areas needed to protect, maintain or replenish coastal lands or resources including coastal flood plains, aquifers and their recharge areas, estuaries, sand dunes, coral and other reefs, beaches, offshore sand deposits and mangrove stands. 15 Special procedures for assessing public beach areas and other coastal areas (especially erosion) requiring access or protection are also required. 16 The most critical special management area in Hawaii is that which extends inland from the shoreline for at least a hundred yards, unless the Department of Planning and Economic Development (DPED) approves a smaller area, defined as "the upper reaches of the wash of the waves, other than storms and tidal waves, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."17 Maps showing the area are required by statute to be filed with the county permitting authority. 18 Although Hawaii's counties originally defined their respective areas of special management as at least a hundred yards wide, recendy many of the counties filed maps with DPED showing zones of differing widths. The mapping of areas of particular concern is primarily controlled by the state directly, rather than by the counties, who have only administrative responsibilities for some. IMPLEMENTATION: W H A T THE L A W REQUIRES

The key to any land use planning system is implementation. The judiciary seems increasingly inclined to accept coastal zone management and preservation rationales as the bases for upholding coastal land use controls.19 Participating states must have the authority to implement the management plan in order for it to be approved by the secretary of the U.S. Department of Commerce. 20 There are three permissible options for implementation: (A) State establishment of criteria and standards for local implementation, subject to administrative review and enforcement of compliance; or

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(B) Direct state land and water use planning and regulation; or (C) State administrative review for consistency with the management program of all development plans, projects, or land and water use regulations, including exceptions and variances thereto, proposed by any state or local authority or private developer, with power to approve or disapprove after public notice and an opportunity for hearings. 21 Option B, direct state control, is the one that Hawaii chose. While seemingly the most onerous, it is not, primarily due to a concept called "networking." Networking in this context is the coordination of state and local land and water use regulatory programs with a primary state coastal zone regulatory statute, so that a comprehensive scheme emerges for the planning and regulation of such areas in the coastal zone. 22 For a state to utilize networking in meeting the state control implementation option certain conditions must be met: first, "each agency which exercises networked statutory authority must be bound to conform to the management program by executive order, administrative directive, qr memorandum of understanding." Furthermore, "all other state agencies and authorities must also be bound to so conform." Finally, it must be possible for any of the following to enforce the management program: "state agency designated pursuant to CZMA § 305(c) (5); state attorney general; another state agency; a local government; a citizen."23 Hawaii has managed to accomplish networking—(and so obtain federal approval of the implementation section of its management plan)— in several ways. First, the HCZMA itself states that its objectives and policies are binding on both state and county agencies. In the event that regulations of state and county agencies fail to so comply, the HCZMA requires that they be amended. Second, a Governor's Directive requires all state departments and agencies to act—within the scope of their respective statutory authority—in accordance with the objectives and policies of the HCZMA. 24 Finally, any person or agency may challenge any state or county agency's lack of compliance with the approved management program's objectives, policies, and guidelines within the waters of the coastal zone boundaries and the land within a special management area or its failure to perform an act or duty required by HCZMA. Courts may provide equitable relief in the form of temporary restraining orders and injunctions. 25 The state and county laws thus networked number at least fifty-eight. They are generally directed at fulfilling the recreational, historic, scenic, and open space, coastal, economic, and development management objectives of the program. 26

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The most noticeable and potentially effective element of the network is that which deals with the special management areas and areas of particular concern. While the state perforce retains overall power and responsibility for assuring that the regulations guiding management and development in these areas accords with the state programs, the counties define the special management areas and pass appropriate ordinances and regulations governing the use of land within their boundaries.27 After state designation, they also permit certain land uses by way of variances to controls for areas of particular concern.28 These systems are partly responsible for the prominent position Hawaii holds in those U.S. jurisdictions experiencing a "permit explosion."29 Special Management Areas (SMAs) In Hawaii, no development may proceed in an SMA unless an applicant obtains a permit from a county permit granting authority, which is either the county planning commission or if it is only advisory, the council or its designated agency.30 Development is defined as any of the uses, activities, or operations on land in or under water within the SMA that includes the following: The placement or erection of any solid material or any gaseous, liquid, solid, or thermal waste; grading, removing, dredging, mining, or extraction of any materials; change in the density or intensity of use of land, including but not limited to the division or subdivision of land; change in the intensity of use of water, ecology related thereto, or of access thereto; and construction, reconstruction, demolition, or alteration of the size of any structure. 31

The following uses, activities, or operations are not "development" (and therefore need no SMA permit) unless the county permit granting authority finds they are or may become part of a larger project, the cumulative impact of which may have a significant environmental or ecological effect on the SMA, in which case it slides back into the regulated "development" category: Construction of a single-family residence that is not part of a larger development; repair or maintenance of roads and highways within existing rights-ofw a y ; routine maintenance dredging of existing streams, channels, and drainage ways; the repair and maintenance of underground utility lines, including but not limited to water, sewer, power, and telephone and minor appurtenant structures such as pad mounted transformers and sewer pump stations; zoning variances, except for height, density, parking, and shoreline setback; repair, maintenance, or interior alterations to existing structures; demolition or removal of structures, except those structures located on any historic site as

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designated in national or state registers; the use of any land for the purpose of cultivating, planting, growing, and harvesting of plants, crops, trees, and other agricultural, horticultural, or forestry products or animal husbandry, or aquaculture or marineculture of plants or animals, or other agricultural purposes subject to review by the authority . . .; the transfer of title to land; the creation or termination of easements, covenants, or other rights in structures or land; and the subdivision of land into lots of greater than twenty acres in size. 32

County permitting authorities may issue three types of permits: a special management area emergency permit, which authorizes development in emergency situations, to prevent substantial physical harm to persons or property; a special management area minor permit, which authorizes development valued at less than $65,000 and which has no substantial adverse environmental or ecological effects (taking into account potential cumulative effects); [and] a special management area use permit, which authorizes development with a value exceeding $65,000 or which may have a substantial adverse environmental or ecological effect (taking into account potential cumulative effects). 33

In granting these permits, the county permitting authority also considers whether the development complies with SMA guidelines designed to ensure access to public beaches and recreation areas, control sewage disposal, regulate site clearing for construction, and generally prohibit adverse environmental effects. 34 Maui, Hawaii, and Kauai counties have designated their plan commissions as their permitting authority, while Honolulu has made it a council function. 35 In Honolulu the administration of the SMA permit system (filing for permits, hearings, and so on) is the responsibility of its director of the Department of Land Utilization (DLU). It is the City Council, however, that decides whether the permit will be granted. Honolulu also requires a mini-environmental impact analysis whenever the DLU director determines that a proposed project requiring an SMA permit "may significantly affect the special management area and that sufficient information to evaluate this impact is not available."38 However, if an environmental impact statement has been prepared under either the Hawaii Environmental Impact Statement law (HEIS) or the National Environmental Policy Act (NEPA) an applicant is excused from that requirement. Maui's SMA provisions are set out in the Rules and Regulations of the Planning Commission.37 As in Honolulu, a key part of the SMA permitting process is the making of an assessment, here by the planning direc-

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tor, of the "proposed action," to determine the extent and scope of the permit review process. In instances of clearly significant (fair market value over $65,000) or potentially environmentally adverse developments, the applicant may waive assessment and go directly to a hearing and review. As the assessment process requires the filing of a fairly detailed application and review by the planning director, waiver could result in the saving of both time and expense. If he finds no significant effect or less-than-$65,000 development, the planning director issues a "minor" SMA permit, with or without conditions. If the applicant has waived the assessment process or if the planning director finds a potentially significant adverse effect, then the applicant must submit to an extensive review process involving, among other things, a "Central Coordinating Agency" of the Planning Commission and an Urban Design Review Board. 3 8 Ultimately, it is the Planning Commission that grants the permit, but only if it finds that "the proposed action will not have a significant adverse environmental or ecological effect, or that such adverse effects are minimized to the extent practicable and are clearly outweighed by public health, safety, or compelling public interest;" that "the proposed action has been reviewed in light of [certain] objectives, policies, and guidelines," and that "the proposed action is consistent with the general plan, zoning and other applicable ordinances of the County of Maui." 39 The rules also provide for the expansion of the SMA boundaries on Maui. 4 0 This Maui has done, primarily for wetland (1,400 acres) and stream (7,600 acres) protection and development control (1,850 acres). 41 As with Maui, Kauai has promulgated rules that give the Planning Commission the authority to grant or deny most SMA permits. Kauai has also adopted an initial assessment process similar to the one used on Oahu and in Maui County, except that the standards for assessing the significance of potential environmental effects are more extensive. If the effects are found to be significantly adverse, a formal SMA permit applicaton and hearing are required. The commission holds a public hearing and makes a decision on the application, which is deemed approved if not decided within the time periods described in the rules. 42 The extent to which the Hawaii courts will strictly enforce the "findings" requirements is clear from a 1982 decision of the Hawaii Supreme Court in Mahuiki v. Kauai Planning Commission.43 There, the court struck down an SMA permit granted by the Kauai Planning Commission solely on the ground that the commission failed to make the required finding of no substantial adverse environmental or ecological effects.

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Kauai also deals extensively with the amendment of SMA boundaries. A change in boundaries may be initiated only by the director of planning. Even a request addressed to the director may come only from a state or county department (or agency) head, the Kauai County Council, or any owner or lessee (not merely an "interested person") of the affected land. 44 The county has expanded its SMA boundaries primarily to protect wetlands (1,500 acres) and wildlife (550 acres) and to control development (585 acres).45 As in Maui and Kauai, Hawaii County vests its SMA authority in its Planning Commission by Planning Commission rules. As in the Kauai rules, the objectives and policies of the HCZMA are recited word for word, followed by the usual list of SMA guidelines dealing with such as access, dredging, ocean views, and water quality. An assessment is required of most projects proposed in the SMA, unless the applicant determines "on his own" that his project will cost or be valued over $65,000 or will have a significant adverse effect, in which case he goes directly to the SMA permit process. The SMA permit is heard and decided by the Planning Commission much the way it is on Maui and Kauai. Unlike Kauai, however, if a decision is not forthcoming within the time limits prescribed by the rules, it is deemed denied. Hawaii also authorizes the appointment of a hearing officer by the commission to conduct the hearings required by its SMA rules, although the commission is, of course, free to decide the SMA permit application any way it chooses.48 SMA boundary applicants in Hawaii County may also petition the Planning Commission (through the director) for boundary amendments. 47 Acting in accordance with such procedures, Hawaii has expanded its SMA boundaries, primarily for the purpose of development control (4,200 acres).48 Areas of Particular Concern (APCs) APCs, like SMAs, are regulated by the networked laws controlling the broadly defined coastal zone subject to the state management plan's general objectives and policies. An APC is created by means of a number of statutory schemes, some of which provide for state regulation, others of which provide for local (county) regulation. Most of these programs were both authorized and operating well before the National Coastal Zone Management Act made their networking a part of Hawaii's coastal zone management program. Among them are the Natural Area Reserve System, the Marine Life Conservation District Program, the Estuarine Sanctuaries Program, the Shoreline Setback Law, and the Hawaii Community Development Authority.

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The legislature established the Natural Area Reserve System to protect unique geological, volcanic, and other natural areas with distinctive marine, animal, and terrestrial features from loss due to human population and technology growth. 49 A Natural Area Reserve System Commission recommends areas for inclusion. Rules specifying use, control, and protection of the areas recommended by the commission are promulgated by the board of the State Department of Land and Natural Resources (DLNR), also referred to as the Land Board. 50 For example, Regulation 10 provides for a range of prohibited activities in all natural reserves, among them disruptive vehicle use, camping, construction of any kind, and the removal or injury of wildlife. The regulation is designed to promote hiking and nature study.51 The Marine Life Conservation District was established to preserve unique areas of Hawaii's marine environment, such as bays, shoals, and estuaries that are vulnerable to loss.52 These districts, designated by DLNR, are protected by regulations that prohibit certain activités, control allowable uses, and regulate scientifically related permits. 53 A separate regulation is issued for each district. Thus, for example, Regulation 32, governing Hanauma Bay on Oahu, provides that "it shall be unlawful for any person to hook, spear, seine, capture, injure, kill, destroy, alter, deface, possess or remove any fish, crustacea, mollusk, sea shells, coral or any other plant or animal life, or any rocks, sand or any geologic features . . in the park. 54 Recent additions to this variety of APC include the Lapakahi Marine Life Conservation District on Hawaii in February of 1979. The Estuarine Sanctuaries Program was established by section 315(1) of the CZMA to provide long-term protection for natural areas so that they may be used for research, scientific, and educational purposes. 55 For example, the Waimanu Estuarine Sanctuary, located in Waimanu Valley on the island of Hawaii, has been so designated. 58 The permitted uses of a sanctuary (which may include low-intensity uses such as recreation, fishing, hunting, and wildlife observation) are determined on a case-by-case basis. The establishment of shoreline setback areas, also an APC, is left largely to the counties, in accordance with statutory guidelines. Thus, while the State Land Use Commission has the initial authority to establish a setback (of not less than twenty nor more than forty feet inland from the upper reaches of the wash of the waves), it is the counties that are specifically empowered to regulate, administer, and enlarge (by ordinance) the land area of such areas, subject to statutory prohibitions against permitting the construction of any structure, including seawalls unless they are necessary for the safety of a preexisting structure, or the removal of any sand, coral, rocks, or other beach material for commer-

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cial purposes.57 There has been little activity in this area, with the exception of the granting of shoreline setback variances primarily by Hawaii (two, for resort improvements) and Honolulu (ten, for seawalls, swimming pools, and fences).58 The Hawaii Community Development Authority is responsible for developing and implementing community development plans and programs in underdeveloped or blighted areas designated by the legislature. 59 This is significant in Hawaii because many urban developments are coastal related and because the authority has certain powers to override county controls and regulations if necessary to better serve the public interest of the state. The program is treated as an area of particular concern because of its treatment of concentrated urban activities in areas where shoreline utilization and water uses are highly competitive. The Kakaako area near downtown Honolulu was designated as the first area subject to the program because of its proximity to the coast and its potential impact in coastal development activities. CONSIDERATION, CONSULTATION, COORDINATION, AND THE SITING OF FACILITIES

Federal approval of any state coastal zone management program depends on a series of consultation, coordination, and participation efforts on the part of the state, not only with federal and local officials but with the general public as well. One element of management program approval is the requirement that the state "adequately" consider the national interest when planning and siting facilities that "are necessary to meet requirements which are more than local in nature," such as those connected with national defense and aerospace programs; with energy production and transmission; with recreation, including national seashores, parks, and forests; and with transportation, including interstate highways, railroads, airports, and so forth. The agencies that must be consulted before a state can plan any such "extra-local" facilities include the Department of Defense and NASA; the Departments of Energy and the Interior, the National Oceanic and Atmospheric Administration (NOAA), the Federal Energy Regulatory Commission, and the Nuclear Regulatory Commission; the Departments of Agriculture and Housing and Urban Development; the Departments of Transportation and Commerce; and the Corps of Engineers. 60 Of equal importance in the process of approval for state management programs is the requirement that an environmental impact statement be prepared under the National Environmental Policy Act in which the state program must be explained in detail. Hawaii's runs to several hundred pages.81 Finally, the CZMA requires that states provide for participation by

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other state agencies, local governments, regional organizations, port authorities, and other "interested" public and private parties during the development of a management program. In addition, certain elements of the program must be coordinated with local, areawide, and interstate plans applicable to the coastal zone. These include housing and land use plans, wastewater treatment facilities plans, highway plans, and flood insurance program plans. 62 The process of coordination continues after program approval, especially where the state management program decisions may conflict with a local zoning ordinance decision.63 In response to these requirements, the Hawaii coastal zone management program declared the following matters to be in the national interest: (1) national defense, (2) mineral extraction, (3) energy facilities, energy research, and energy reserves, and (4) resource conservation. 64 However, as Hawaii has a local government structure consisting of but four counties, each of which has islandwide jurisdiction, the concept of "regional" benefit beyond local benefit is nearly impossible to apply, so the management program interprets the concept as applying to land and water uses of statewide benefit or of benefit to more than one county. The program declares the following uses to have regional benefit: (1) scientific field research, (2) marine-related research facilities, (3) energy research and development facilities, (4) mineral extraction, (5) intrastate or international communication and transportation facilities, (6) mineral or fuel processing or transshipment facilities, and (7) national defense and coastal protection facilities. 65 COMPLIANCE

The extent to which the CZMA as a voluntary program results in the achievement of federal statutory objectives depends on evaluation and compliance review. This the CZMA provides by requiring the Office of Coastal Zone Management (OCZM) to "conduct a continuing review of . . . the management programs of . . . coastal states with respect to coastal management. 66 Usually, evaluation takes place on an annual basis. The state prepares a response to an OCZM "information request," OCZM representatives visit the state, and the OCZM prepares "findings" based on both. If a state deviates without justification from its approved program the OCZM has the authority to withdraw that program's federal funds. As experience with evaluations increases (few states have had approved programs for more than a few years), the techniques for evaluation have become more sophisticated in theory but are frequently chaotic and highly subjective in practice. This may be due to the relatively broad goals to be accomplished by the review—program justification,

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information gathering, accountability—and the different perspectives state program managers and federal evaluators bring to the process.67 Congress asks the OCZM not the states to account for money spent on coastal zone management programs. Nevertheless, it is at the state and local level that coastal zone management actually occurs. CONSISTENCY

A major incentive (besides federal money) for states to participate in the coastal zone management program is the federal "consistency" requirement in all states with approved coastal zone management programs. Consistency means that federal agencies must operate "to the maximum extent practicable"—that is, act, license, subsidize, and so forth—in a manner consistent with the objectives and policies of an approved state coastal zone management program. 68 Because federal lands (which may, at the option of the federal government, be exempt from state and local zoning and subdivision laws) are excluded from the boundaries of state-defined coastal zone management areas, state and local coastal zone land use regulations do not apply to them. 89 Thus, for any state with substantial federal coastal lands, like Hawaii, the consistency provisions of the CZMA represent the principal method of reviewing federal activities on these lands. The CZMA subjects five categories of federal actions to some consistency with state management programs: 1. Federal activities (initial determination by federal agency). 2. Federal development projects (initial determination by federal agency). 3. Activities requiring a federal license or permit (initial determination by state agency). 4. Outer Continental Shelf (OCS) exploration, development, and production activities (initial determination by U.S. Secretary of the Interior). 5. Federal assistance activities to state and local governments (initial determination made by the state). 70 In none of these categories is the federal government foreclosed from acting. Rather, the CZMA creates a hierarchy of reviews, findings, and high-level approvals before any action found to be inconsistent with an approved state coastal zone management plan may proceed. In Hawaii, DPED has primary responsibility for reviewing federal programs, activities, permits, licenses, and development proposals for consistency with the state's approved management program. 71 The federal guidelines, discussed below, guide DPED in making consistency

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determinations on activities and development projects. All other federal actions in the coastal zone are reviewed by the appropriate federal agency for an initial consistency decision before DPED's consistency determination.72 Federal Activities and Development Projects Federal activities and development projects directly affecting the coastal zone must be consistent with state management plans to the maximum extent practicable. A "federal activity" is any function performed by or on behalf of a federal agency in the exercise of its statutory responsibilities. A "federal development project" is an activity involving the planning, construction, modification, or removal of public works, facilities, or other structures, and the acquisition, utilization, or disposal of land or water resources. The phrase "directly affecting the coastal zone" is presently undefined, but federal development projects within the coastal zone are to be considered as directly affecting it, while all other types of federal activity either in or outside that zone may be "determined" to directly affect it after review by the acting federal agency.73 In borderline cases, "directly affecting the coastal zone" is supposed to be "liberally construed." The phrase "consistent to the maximum extent practicable" means that activities and development projects must be consistent with approved state management programs unless another law defining the acting federal agency's activities prohibits such consistency. Then, the federal agency must point out to the state the law that prohibits consistency. However, consistency with an approved management plan is required of a federal agency only "to the maximum extent practicable."74 Finally, it is only the so-called mandatory policies of the state management program with which federal activities and projects must be consistent. Provisions that are in the nature of recommendations require only "adequate consideration." What consistency requirements there are therefore depend to a large extent upon the level and sophistication of the approved state coastal zone management program. 75 Conflict over consistency does arise. An example is the disagreement between DPED and the National Marine Fisheries Service (NMFS) over proposed federal regulations (an "activity") for the harvesting of precious coral. The state gives the Land Board jurisdiction over coral, and the board has issued regulations that heavily restrict where coral can be harvested, and by what means. The proposed federal regulations would allow harvesting in more areas and by nonselective (nets, dredges, and so on) means. DPED has notified NMFS that it disagrees with the NMFS determination that the proposed regulations are consistent with

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Hawaii's Coastal Zone Management Program to the maximum extent practicable. 76 Activities Requiring a Federal License Any applicant for a federal license or permit to conduct an activity affecting the coastal zone must show that the activity complies with and will be conducted in a manner consistent with a state's approved management program, without which the permit or license may not be issued.77 A federal license or permit is an authorization, certification, approval, or other form of permission that any federal agency is authorized to issue to an applicant, except for projects that involve outer continental shelf exploration and development.78 An applicant is virtually anyone who files an application for a federal license or permit to conduct an activity in the coastal zone. This could be an individual, a public or private corporation, partnership, association, or any other entity organized or existing under state and local government.79 The phrase "affecting the coastal zone," like "directly affecting the coastal zone," is not defined. Presumably the difference in language signals a difference in thresholds, with a federal license held to a higher standard in applying consistency regulations. In the same vein, "in a manner consistent" (also undefined) differs from the phrase "consistent to the maximum extent practicable," which is applied to federal activities and development projects. In contrast to federal activities and projects where the federal agency makes the initial determination, whether or not a federal license or permit activity affects the coastal zone is initially determined by the state, which lists the permits and licenses that will be subject to consistency review in their management programs. Once it is determined that a permit or license activity is subject to consistency requirements, the applicant must prepare and furnish to the state and the issuing federal agency a certificate indicating that the proposed activity will be consistent with the state's approved management program. If the state objects to the certification, the federal agency may not issue the license or permit until the applicant successfully appeals to the Secretary of Commerce, who may permit the activity either because it is in the interests of national security or it is consistent with the CZMA. In so finding, the secretary must determine that there is no reasonable alternative available.80 OCS Exploration, Development, and Production Leases for outer continental shelf projects require the approval of the Secretary of the Interior.81 An applicant submits a plan for the required license or permit, describing federal license and permit activities in de-

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tail, which must be conducted in a manner consistent with an approved state management plan.82 The procedure for consistency determination is virtually identical to the aforementioned federal license and permit activites procedure. Any OCS activities for which the secretary failed to require a description in the OCS plan were theoretically caught up in the consistency requirements for federal permits and licenses generally,83 and the federal courts upheld stringent state and local permit programs based upon such consistency determinations, despite industrial complaints about both the programs and their enforcement to regulate OCS exploration and development.84 However, in Secretary of the Interior v. California,65 the U.S. Supreme Court held that the lease and sale of OCS resources by the Secretary of the Interior in 1982 did not directly affect California's coastal zone under the California-approved coastal zone management plan. Therefore the secretary could ignore the federal CZMA by selling oil and gas leases without making a consistency determination under section 307(c)(1) of that act. Essentially, the court held that the sale of OCS oil and gas leases is not an activity "directly affecting" the coastal zone, thus obviating the need for a consistency review. It based that decision on an interpretation of congressional intent not to subject such lease sales to consistency review. Regrettably, the decision can be interpreted to exclude from such review all federal activities that occur outside the coastal zone. Federal Assistance to State and Local Government Federal funds for state and local activities affecting the coastal zone (highways, sewage treatment, urban renewal) may be granted only when consistent with an approved state management program, as determined by review.86 Assistance is broadly defined as grant or contractual arrangement, loans, subsidies, guarantees, insurance, or other forms of financial aid. There are two steps to state and local assistance consistency review. First, the state must decide on what assistance programs are subject to consistency review. Normally, the state will list these assistance programs in its management program. Should the affected federal agency disagree, either the state or the federal agency may seek a determination either by the Secretary of Commerce or by judicial review. Once the state and federal agency are agreed that the assistance program is subject to consistency review, local or state agencies applying for that assistance must notify the state reviewing agency. If that agency determines the assistance activity is inconsistent with the approved state coastal zone management plan, the federal agency is prohibited from making that assistance available unless the state or local applicant successfully appeals to the Secretary of Commerce, who

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may override the state review agency in the interests of national security or consistency with the goals of the CZMA.87 The coastal zone program in Hawaii consists primarily of a state-local regulatory partnership that owes much, but not by any means all, to the federal guidelines and standards framework that accompanied the federal funds used to develop the program. Key to its implementation are county SMA permit procedures and state APC management programs. A growing issue, if not a problem, in Hawaii is the way in which the CZMA program regulatory scheme—especially where networking is involved—intersects, overlaps, and conflicts with other federal or federally mandated programs, especially as those programs are carried out at the local level. In a way, some of these problems are at least examined under the so-called "312 Evaluation Process," under which state CZM programs are regularly reviewed and rated. 88 Others have been the subject of report and concern at the federal level, especially the potential conflict between federally suggested rules and statutes for the location of transportation facilities, and various flood hazard and coastal zone regulatory programs. It is at least probable since the Texas Landowners Rights Assoc. v. Harris case in 1978, that the federal government will continue to duck behind the nonrequirement shield when such conflicts surface. 89 Briefly, the argument is that since most federal programs are voluntary, and the regulatory programs that may come with the federal program (and federal money, the key inducement usually for state and local governments to "volunteer") therefore avoidable, the conflicts, if any, are state-local problems and represent no legal federal involvement. While this may be legally correct, it is hardly defensible in terms of actual conflict resolution, programmatic coordination, and efficiency.

8 Flood Hazards and Floodplains The dangers of flooding are intangible to the human mind, while the aesthetic and economic advantages of locating near rivers and on coasts can be quite concrete. Even after disaster actually strikes, humans generally try to forget and plod onward. Plater, "The Taking Issue in a Natural Setting: Floodlines and the Police Power"

Disaster protection as a policy goal sounds unassailable. In practice, it is a barely mitigated catastrophe. This is in part due to man's tendency to build houses in floodplains and coastal hazard areas, despite the virtually certain knowledge that a flood will one day destroy whatever is built there. Living in flood-prone areas, whether coastal or riverine, will eventually be costly, if not disastrous. Yet man persists in disregarding the hazard. In March 1962, for example, a storm that ravaged the east coast of the United States produced $80 million worth of damage in three days in just one state alone—New Jersey. Hundreds of houses were destroyed or damaged beyond repair, lives were lost, many people were injured. The consequences for tourism, the major economic base of the New Jersey shore, were significant. Once the storm was over, however, "giant bull dozers pushed the wrecked houses into the bay . . . and slowly houses reappeared to fill the self-same sites of those that had been swept away."1 In Hawaii, the flood hazard is both riverine and coastal. Riverine flooding is caused by heavy rainfall, which results in the temporary rise of the water level of streams or other natural watercourses. When the carrying capacity of watercourses is exceeded, the adjacent lands, or floodplain, is inundated. Coastal flooding occurs when unusual surf conditions or tsunamis generate waves that inundate the shoreline areas. Damage from tsunamis is not only due to flooding but also results from the velocity of the onrushing water. Tsunamis also cause extensive beach and shoreline erosion. Both types of flooding have caused much damage in Hawaii. 2 Hawaii appears to have learned its lessons with

Flood Hazards and Floodplains respect to coastal flooding damage better than New Jersey has, however. The large area bordering Hilo Bay on the island of Hawaii was a teeming residential district in Hilo before the 1960 tsunami swept it away—with some loss of life. It is now open space, largely park, with earthen containment walls at its border. 3 Coastal areas on the U.S. mainland share many of the same characteristics with coastal areas in Hawaii in terms of flooding. By the same token, the disastrous stream overflow floods that occurred on the island of Hawaii near Hilo in 1978 and 1979 were similar in character to riverine floods on the mainland. Relatively speaking, however, coastal flooding, if not more common, has more potential for damage in Hawaii because of the intense development of Hawaii's coastal zone. The floodplain is the land area on either side of a river that is likely to be inundated in the event of a 100-year flood, so-called because of the 1 percent statistical likelihood of its occurring in any one year, or, conversely, the likelihood of its occurring but once every hundred years. 4 Such floods have occurred with alarming frequency on the U.S. mainland in the past two decades. 5 The floodway is that portion of the floodplain adjacent to and including the river channel, which is expected to carry the greatest volume and flow (velocity) of floodwaters, including those of lesser frequency than a 100-year flood. 8 Common sense dictates no structures should be built in the latter, and as few as possible in the former, not only to decrease the likelihood of personal and property injury but also to preserve the capacity of the floodway to carry water and the floodplain to absorb it. Development in either simply causes more water to flow both laterally and downstream, thus enlarging the area of both floodplain and floodway and increasing the velocity of the floodwaters. Either or both is likely to increase both downstream and upstream damage to any structures. 7 This brief sketch of the hazards of flooding may help to explain and justify, in legal terms, floodplain zoning—the exercise of the police power to prevent damage to life and property from floodwaters. Indeed, many courts have had precious little difficulty in sustaining local regulation of both coastal and riverine flood-prone lands in principle, although other courts have held that if the prohibition of use goes too far, a "taking" of private property has occurred for which compensation is due. 8 This is particularly true when the protective rationale appears to be tainted by other public purposes such as the need for open space or the preservation of views. 9 Nevertheless the theoretical public purpose behind the local regulation of flood-prone lands—the protection of life and property—is wellestablished. This is particularly critical because the Federal Disaster

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Protection Act (FDPA) and its predecessors require nothing unless and until a community chooses to become part of a federal program, which it does largely because of various financial inducements. 10 Thus, the issue of federal power to enact floodplain/flood disaster protection laws never arises—it is always the local ordinance that does the regulating. Therefore, one of the key questions in discussing the regulatory aspects of the FDPA program in any given state is, What is the local court attitude toward floodplain zoning? In Hawaii this issue has yet to be decided by the state's highest court.

The Federal Disaster Protection Act The federal government has been in the flood control business for nearly half a century, since 1936 when the Flood Control Act was passed.11 Essentially, federal flood control programs have approached the flood hazard by (1) attempting to control floods by various preventive measures—dams, levies, reservoirs—and (2) regulating the use of land within the floodplain. It was the insurance aspect of flood hazard mitigation that involved the government in flood control through the promulgation of land use regulations. As a condition of providing flood hazard insurance—in order to minimize the extent of claims thereon— the early programs directed that it would first have to be found that the state or local government with jurisdiction over an insurance applicant's property had adopted floodplain zoning restrictions sufficient to reduce flood damages and, second, that the property proposed to be insured had not been declared, by an appropriate public body, to be in violation of those floodplain zoning laws. For a variety of reasons—including lack of congressional funding— the first attempt to promote floodplain regulation of the state and local level failed. 12 Nevertheless, the insurance aspect of flood hazard mitigation became firmly engrafted onto the federal flood hazard program. It was given considerable impetus by Hurricane Betsy in 1965, which destroyed 1,500 houses, damaged 150,000, damaged or destroyed 1,400 farms and 2,600 small businesses, and adversely affected close to a million persons in Florida, Louisiana, and Mississippi.13 As a result, the government developed the first comprehensive disaster protection act, the National Flood Insurance Act of 1968. 14 The 1968 act set out clearly the dichotomy between individual and community participation in a federally sponsored flood hazard mitigation/disaster relief program. Under the terms of the act, eligibility for federally backed private flood insurance for primarily residential properties depended upon state and local community participation in the

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program. A condition for participation for the community was the formal adoption of a land management system based upon permanent land use controls. A condition of eligibility for private individuals was compliance with these state or local controls. No federally subsidized insurance, and therefore usually no flood hazard insurance, was available in areas in which state and local government chose not to participate. There was nothing the private individual could do to become eligible. Nor was there any sanction against nonparticipation by state and local government beyond that which ultimately fell on the private landowner —no subsidized flood insurance. When flood insurance first became available under the National Flood Insurance Act of 1968, the City and County of Honolulu and the Hilo area of the County of Hawaii were among the first communities in the nation to become eligible. 15 Under the program it is the local governmental units, not the states, that are the primary implementing agencies. The role of the states is limited to assisting and coordinating local government efforts. 16 The state of Hawaii specifically authorized the mayor or executive officer and the councils of its four counties to participate in the National Flood Insurance Program and to pass the flood zoning ordinances that are required by the program. The state Department of Land and Natural Resources (DLNR) was designated to coordinate the program. 17 The current federal flood hazard mitigation and disaster relief program is represented in the Federal Disaster Protection Act (FDPA) of 1973 (as amended), whose purpose it is to discourage the building of structures on floodplains as well as to provide relief for the victims of floods.18 It is supposed to do this by making available federally subsidized insurance to those who have suffered flood damage, on the condition that the local government in whose jurisdiction they reside passes certain restrictive land development and flood-proofing regulations. It increased considerably the penalty that flood-prone communities—and their residents—would suffer for choosing not to participate in the program and its accompanying land use and flood-proofing regulations. The principal sanction against communities that opt not to participate in the FDPA insurance program is that no federal aid is available for the building of structures in flood hazard areas subject to the jurisdiction of nonparticipating local governments. This includes urban renewal aid, Clean Water Act assistance, wastewater treatment grants, and a host of other federal aid programs. 19 Individuals in nonparticipating communities are not eligible for federal disaster assistance of any kind. Individuals living in flood-prone areas in participating communities who fail to obtain flood insurance are not only excluded from

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receiving federal disaster aid but they are also ineligible for mortgage loans from any federally insured lending institution. The latter can be very effective, since federally insured lending institutions control more than 80 percent of the available funds for residential purchase-money mortgages. 20

The Sequence of Federal Actions under the FDPA The number of communities having flood-proofed and regulated flood hazard areas as a result of participation in the FDPA program was, until recently, fairly small. This is so because of the tasks the FDPA imposes on the federal government before it can make flood-proofing and development regulation demands of participating communities. Basically, these tasks are to identify the flood-prone areas of a community and to determine flood elevations so as to ascertain the level at which habitable dwellings must be constructed in flood-prone areas. These tasks are carried out by the Federal Insurance Administration (FIA). First, the FIA is directed by the FDPA to prepare maps for the community showing the general flood hazard areas, beginning with a Flood Hazard Boundary Map (FHBM), defined as "an official map of a community issued by the (Federal Insurance) Administrator, where the boundaries of the flood, mudslide (i.e., mudflow) [and] related erosion areas having special hazards have been designated as Zone A, M, V, and/or £ . " 2 1 Zone A is the area of special flood hazard in the community in which land in the floodplain is subject to a 1 percent or greater chance of flooding in any given year. Zone M is the area of special mudslide hazard in the community in which land is most likely to be subject to severe mudslides. Zone E is the area of special flood-related erosion hazard in the community in which land is most likely to be subject to severe flood-related erosion losses. After the FHBM is issued, the administrator must then notify the chief executive officer of the community of any flood hazards identified by the FHBM. At this point, the community must either (1) promptly apply to participate in the program or (2) within twelve months submit technical data to show that the community is not flood prone. 22 If the community fails to become a participant in the program within one year of notification and cannot show it is not flood prone, it is subject to the aforementioned sanctions imposed on nonparticipating communities. If the community decides to participate in the program, it must satisfy the eligibility requirements that are discussed later in this chapter. It will then be allowed to enter the "emergency" phase of the program. Under the emergency phase limited flood hazard insurance

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may be made available to homeowners in flood-prone areas when certain minimum regulations have been adopted. Communities are not eligible to enter the regular phase of the program until strict floodplain regulations have been adopted and approved. Maximum insurance coverage is available to homeowners in communities participating under the regular phase of the program. The City and County of Honolulu entered the emergency phase of the National Flood Insurance Program and became eligible to provide subsidized flood insurance on June 5, 1970, when a preliminary FHBM was issued, as did the Hilo area on the island of Hawaii. The County of Hawaii's preliminary FHBM was issued on the same date. The Hilo area became eligible under the regular phase of the program on June 4, 1971. The other areas of the county have been participating in the emergency portion of the program since Marcn 5, 1971. Maui county entered the emergency phase and became eligible to provide subsidized flood insurance on September 18, 1970. Its preliminary FHBM was not issued until December 6, 1977. The County of Kauai went into the emergency phase of the program and became eligible to provide subsidized flood insurance on April 2, 1971. Its FHBM was issued on December 20, 1974." After filing a detailed environmental impact statement, the federal insurance administrator must next publish the more detailed Flood Insurance Rate Map (FIRM), setting out for each area identified as flood prone (by the FHBM) a refined identification of special flood hazard and flood elevation areas. 24 The purposes of the FIRM are to identify the limits of the flood and the depth of the flow and then to establish flood-risk zones that will be used by insurance agents for the rating of specific new properties to be insured under the regular phase of the program and to identify the nature of land use permitted within the zone. A FIRM is "an official map of a community, on which the (Federal Insurance) Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community." The FIRM is prepared after a risk study for the community has been completed and general risk insurance premium rates have been established. 25 The number and detail of the risk premium zones are considerable. 26 Flood elevations are a determination by the administrator of the water surface elevations of the base flood, which is the flood level that has a 1 percent or greater chance of occurrence in any given year.27 These flood elevations are shown on the FIRM and are the minimum building levels for new construction. 28 Concerned that local community views were not being adequately considered, Congress added a consultation and appeal procedure for

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flood elevation determinations as part of the FDPA. Whenever flood elevations are to be determined or modified, the FIA is required to inform the community of the nature and purposes of the study, the areas involved, the manner in which the study is to be undertaken, the general principles and methods employed, and the use to be made of the data obtained.29 There follows a host of publication, notice, and hearing requirements, the upshot of which is that until the process is complete and the FIA makes a proposed final determination of flood elevations and so notifies the community, the community remains eligible under the emergency phase for federally subsidized flood insurance (and, therefore, the land use impacts of the program may be minimal). Moreover, the determination of elevations also signals the earliest date from which a participating community can be required to adopt local land use control measures. Honolulu received its detailed FIRM from the FIA on March 3, 1980, and it took effect on September 3, 1980. There has been considerable activity statewide under the FDPA program because FIRMs have been approved in all areas of the state. This means that detailed flood hazard regulations must be enacted in all the counties.30 Some already have been, as discussed later. Eligibility Requirements Assuming a local community desires to participate in the FDPA program—in order for its citizens to permanently receive maximum subsidized flood insurance and for the community to become eligible for other federal programs—it must meet a number of eligibility requirements.31 Many of these are largely administrative, directing the community to outline the manner in which it is (or is proposing to be) complying with the land use control and flood protection requirements described below. These are the heart of the land control aspects of the FDPA, for they virtually dictate what kinds of regulatory programs must be enacted once the FIA has proceeded to the various steps set out in the preceding section. The National Flood Insurance Act provides that flood insurance may not be sold or renewed under the program in a community unless the community has adopted adequate floodplain management regulations consistent with federal criteria. Such regulations must be enforceable, applied uniformly throughout the community to all privately and publicly owned land within flood-prone, mudslide, or flood-related erosion areas, and must take precedence over any less restrictive conflicting

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local laws, ordinances or codes. The type of land use regulations required depends on the amount of information that the FIA has provided to the community.32 A community is considered to be participating as soon as it has begun the emergency phase. A participating community's land use regulation obligations start when the community has identified a floodway or coastal high hazard area within its boundaries in an application to participate in the FDPA program, even though the FIA has provided no information—certainly no FHBM—whatsoever on flood data at that point. The community's land use obligations are thus negligible, amounting to little more than requiring permits for development and identifying those developments that will be newly constructed or substantially improved in flood-prone areas and seeing that they are constructed in a reasonable flood-proof manner.33 Upon the FIA's publication of a participating community's FHBM, but before identification of either water surface elevation or floodway/ coastal high hazard area, the level of required regulation increases modestly. Large subdivisions must provide the community with flood elevation data, and the community must seek out and use whatever other flood elevation data are available. Utilizing these flood elevation data, the community must require all new residential constructions to have the lowest floor (including basement) elevated to or above the base flood level and all new nonresidential structures to be either so raised or flood-proofed. The community must also assure that the flood carrying capacity of any altered or relocated portion of any watercourse is maintained.34 When the FIA locates final base flood elevations in certain zones on a participating community's FIRM, the land use requirements become more complicated, even though FIA has not yet identified either a regulatory floodway or coastal high hazard area. The zones in which floodproofing or construction above base flood levels must be required (unless exceptions or variances are granted) are expanded. Moreover, until the regulatory floodway is defined no new construction, substantial improvements, or other development are to be permitted within certain zones unless it can be demonstrated that the cumulative effect thereof, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.35 Once the FIA has provided additional flood elevation data on a participating community's FIRM and data from which the community "shall" designate its regulatory floodway, the community must "select and adopt" such a floodway and prohibit encroachments (including fill)

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that would result in any increase in flood levels in the community during a flood.36 Finally, when the FIA has provided similar flood elevation data to coastal participating communities (like Hawaii) and has identified in their FIRMs a coastal high hazard area, the community must see that all new construction within that zone is located landward of the reach of the mean high tide and is elevated so the lowest floor is above the flood level and the lower levels of buildings have breakaway walls. 37

Hawaii Participation in the Flood Insurance Program Since Honolulu's FIRM includes base flood elevations, floodways, and coastal high hazard areas, the city was required to adopt the strictest federal land use requirements by the effective date of the FIRM in order to comply with the program. On August 20, 1980, the mayor approved amendments to the Comprehensive Zoning Code (CZC), Building Code, Electrical Code, and Plumbing Code to satisfy federal requirements. 38 The FIA has reviewed these amendments and has stated that they meet the federal land use requirements of the program. 39 The former flood districts section of the CZC was amended in its entirety and replaced by a new ordinance, which takes precedence over any less restrictive or conflicting law or regulation of the city. The new flood hazard districts ordinance establishes four districts: floodway, flood fringe, coastal high hazard, and general floodplain. The flood hazard districts cover all areas so designated on the FHBMs and FIRMs prepared by the FIA. 4 0 The flood hazard districts are overlay districts and all land uses within these districts must comply with their regulations as well as with the applicable restrictions of the underlying zoning district. The new ordinance then sets out permitted uses and provides general construction standards for each district. It also contains sections dealing with variances, exemptions, and nonconforming uses, all as required by the federal program. The director of the Department of Land Utilization (DLU), with the assistance of the chief engineer of the Department of Public Works and the building superintendent, is responsible for its administration. The ordinance begins by setting a series of broad, general construction, water, and drainage standards applicable to developments in all four districts. Then follows individual standards for each district, with the degree of restriction dependent upon the likelihood of, and proximity to, a flooded area. The floodway district, since it comprises the areas required to carry or discharge the flood without increasing the flood elevation of the floodplain more than one foot at any point, is the most heavily restricted district. Only a few nonstructured uses, such as farm-

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ing, are permitted, and then only if they do not adversely affect the carrying capacity of the floodway. The flood fringe district, the portion of the floodplain outside the floodway, is considerably more permissive. Uses otherwise allowable in the underlying zoning district are permitted, provided that the lowest habitable floor is elevated to the regulatory flood level (the 100-year flood) as shown on the FIRM. 41 The restrictions in the coastal high hazard district, the area subject to high velocity waters, including tsunamis, are similar to those in the Flood Fringe District. Finally, the regulations in the general floodplain district, consisting of the approximate floodplain area as delineated on the flood maps where detailed engineering studies have not been conducted to designate flood fringe and floodway areas, subject all developments, on a project-byproject basis, to review/approval by the DLU director to determine if the proposed development is within a flood fringe or floodway. This is to take care of those areas where base flood elevations have not yet been determined by the federal government, making further mapping impossible. Until a floodway or flood fringe district is designated, no development is allowed if it increases the water surface elevation more than one foot at any point. Nearly identical provisions apply to proposed developments adjacent to a stream, river, or drainage facility outside one of the four zones.42 In the County of Hawaii, where some areas are now in the regular program, the flood hazard regulations are contained in the county's Zoning Code and its Building Code. Because the county is in both phases of the program, however, differing levels of flood hazard regulations are required.43 The Hawaii County Zoning Code provides for floodplain regulation through safety districts, which are defined as areas where there is potential danger of loss of life or property because of flash floods, earth or rock slides, action associated with earth faults, tsunamis, volcanic action, or any other natural phenomenon. A subdistrict of the safety districts, which are overlay districts, is the safety flood hazard district, which applies to areas designated by the FIA. No structure may be erected in any safety district unless a use permit has been issued. Such a permit may not be issued until the county council has approved special standards of construction and safety precautions for the proposed structure to eliminate or substantially reduce the potential danger from the applicable hazard, in this case, flooding.44 As a condition of obtaining a building permit in a safety flood hazard district, any proposed new construction must be designed to "(1) prevent flotation, collapse or lateral movement of the structure; (2) minimize flood damage; and (3) use materials and equipment which are

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resistant to flood damage." 4 5 All new construction or substantial improvement of nonresidential structures in the safety flood hazard district must have the lowest floor (including basement) elevated to or above the regulatory flood level or be waterproofed up to the level of the 100-year flood. Maui received final notice of proposed base flood elevations on July 9, 1980, and then entered the regular phase of the National Flood Insurance Program. 46 Unlike the other counties, Maui's flood hazard regulation is not specifically incorporated in its zoning or building code, although it is apparently intended to be treated as if it were part of the zoning ordinance. The flood hazard regulation is separately printed as a Floodplain and Tsunami Inundation Area Ordinance. 47 It provides for the establishment of floodplain districts, uses within floodplain districts, standards for development, and nonconforming uses. The practical effect is the establishment of overlay zones in which uses are regulated in addition to the regulations in the county's comprehensive zoning ordinance. "Floodplain district" is the general term used to identify all floodprone areas. It includes a floodway district, flood fringe district, and the tsunami inundation district. The districts are adopted by ordinance and designated on the official zoning maps of the county. Prior to their mapping, the ordinance is effective only for those areas found by the director of Public Works and the County Council to be subject to recurrent flooding or tsunami inundation. The ordinance does not require that the floodplain districts be the same as those on the FHBM or as otherwise identified by the FIA. 4 8 As might be anticipated, the floodway district is the most restrictive, permitting only nonstructural uses listed in the district regulations and only the barest of structural uses by special permit, and then only upon condition that such uses will not reduce either the efficiency or the capacity of the floodway. In the flood fringe, structures are permitted, provided they are either elevated above the flood protection elevation or adequately flood-proofed. Uses are far less restrictive in the tsunami inundation district, which may include hospitals and sanitariums, nursing homes, housing for the elderly, schools, major utility installations, and facilities for storage of flammable and explosive materials, provided permission is first obtained from the Planning Commission. 49 Kauai is also in the regular phase of the National Flood Insurance Program. 50 As discussed in more detail in chapter 3, Kauai has enacted development restriction zones called constraint districts, which operate as overlay zones, as a part of its Comprehensive Zoning Ordinance. The constraint districts are divided into six subdistricts: a tsunami district

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(S-TS), flood districts (S-FL), a drainage district (S-DR), a soils district (S-SO), slope districts (S-SL), and shore districts (S-SH). 51 With the exception of the shore districts, all of the subdistricts regulate uses to prevent flood, tsunami, erosion, or mudslide damage and therefore are related to floodplain management. Only the first three are truly directed toward the mitigation of flood hazards, however. The purpose of the tsunami district is "to minimize the threat to the public health and safety, and damage to property due to extraordinary ocean wave action." Residential structures containing more than four dwelling units and resort development designed for transient or other residential use are permitted subject to conditions that, among other things, require the preparation of reports covering wave height, action, force, and inundation, and forbid structures where these factors exceed certain limits. 52 Flood districts are established in order "(1) to minimize the threat to public health and safety due to periodic inundation by storm water," and "(2) to maintain the characteristics of floodplain areas which contribute to ground water recharge, storm water storage, silt retention and marine water quality." 53 The flood district includes areas defined by the theoretical maximum elevation of flood water calculated from a 100-year storm probability using hydrologic criteria and formulas established by the Department of Public Works. Uses requiring the development, grading, or alteration of any portion of the flood district are permitted if the applicant satisfies such requirements as the filing of detailed development plans, an environmental impact statement, hydrologic and geologic reports (when required by the Department of Public Works or the planning director), and a series of flood and structural showings. 54 Drainage districts are established for three purposes: "(1) to protect the function of natural and existing water courses as a part of the system for surface water collection and dispersal; (2) to maintain the quality of surface and marine water as a valuable public resource;" and "(3) to regulate the modification of water." 55 The drainage district includes all rivers, streams, storm water channels, and outfall areas indicated in the development restriction zones of the county general plan and in other areas of similar physical characteristics and conditions. 50

Variances and Exceptions As local zoning and subdivision controls are the primary method of enforcing FDPA land use requirements, the various techniques and tools of local zoning assume critical importance. Two of the mechanisms used

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to provide relief from general ordinance provisions in unusual cases are treated in the FDPA program: variances and exceptions. Theoretically, the variance is granted in cases of unusual individual hardship and should represent the least tinkering as possible with the ordinance as applied, consonant with affording the applicant some relief.57 An example is the varying of, say, an eight-foot side yard requirement by a few inches to permit the construction of a house addition in a residential zone. In practice, however, local zoning boards have often converted the variance process into a mini-rezoning process, granting so-called "use" variances by which uses inconsistent with a zone classification are often permitted after an applicant has unsuccessfully sought to have the subject property reclassified from a zone prohibiting such use to one permitting it. In other words, the variance process became a zoning appeals process. Permitting such variances to flood hazard regulations would result in the undermining of the FDPA program. Therefore, FDPA regulations permit the granting of variances only under extenuating circumstances, casting the burden on the applicant to show exceptional hardship and to show that the granting of the variance sought will have no effect on floodwaters in the floodplain. In Honolulu, subject to the review and approval of the DLU director, the following may be permitted as a flood hazard variance: "new structures except in the Floodway District which are to be erected on a lot of one-half acre or less in area, contiguous to and surrounded by lots with existing structures constructed below the regulatory flood elevation" and "uses, structures and standards in the Floodway District as permitted under the underlying zoning district, which do not result in any adverse increase in the regulatory flood elevation."58 However, a series of factors must be considered in the grant or denial of the variance: (a) The danger to life and property including surrounding properties due to increased flood elevations or velocities caused by the variance. (b)The danger that materials may be swept on to other lands or downstream to the injury of others. (c) The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination, and unsanitary conditions. (d) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owners. (e) The importance of the services provided by the proposed facility to the community.

Flood Hazards and Floodplains (f) The availability of alternative locations not subject to flooding for the proposed use. (g) The compatibility of the proposed use with existing development anticipated in the foreseeable future. (h)The relationship of the proposed use to the floodplain management program for the area. (i) The safety of access to the property in times of flood for ordinary and emergency vehicles. (j) The expected elevations, and velocity of the regulatory flood expected at the site due to the variance. (k) The failure to grant the variance would result in exceptional hardship to the applicant. (1) The variance will not result in adverse increase to the regulatory flood elevations, additional threat to surrounding properties and to public safety, extraordinary public expenses or conflict with other laws or regulations. 59 The director may attach conditions to the variance, should he choose to grant it. If a variance is granted, the applicant must agree to insert a covenant in deeds and other conveyancing documents pertaining to property and filed with the Bureau of Conveyances stating that the property is located in a flood hazard area, is subject to flooding and flood damage, that increased flood insurance premiums will result from the variance, and that he will not sue the city for loss or damage as a result of being permitted to build. 60 The granting of variances is reviewable by the FIA. If a pattern inconsistent with the objectives of sound floodplain management emerges, the FIA may suspend a community from the flood insurance program. Provisions have been specifically made, however, for the reconstruction, rehabilitation, or restoration of structures listed on either the National Register of Historic Places or the state inventory of historic places. 61 While a variance is personal relief for an individual from a zoning regulation, an exception is a waiver from federal land use standards directed to a community, which relieves it from the requirements of a rule, regulation, order, or other determination. Certain exceptions from federal land use standards may be permitted by the FIA because of extraordinary circumstances and local conditions that make their application the cause of severe hardship and gross inequity for a particular community. A community seeking an exception must justify the request by showing supporting economic, environmental, topographic, hydrologic, and other scientific and technical data. 62

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In Honolulu, some structures and improvements are exempt from the provisions of the CZC flood hazard sections, as permitted under the federal program. Obviously some of the exemptions—like that for the reconstruction of historic structures—are based on competing national and local policies and objectives, since they are as potentially damaging to flood hazard control as any other structure. Among the numerous exemptions are structures listed on the National Register or state inventory of historic places; fences, retaining walls, seawalls, piers, and docks; outdoor swimming pools; signs; temporary structures and uses; storage sheds for agricultural, lawn equipment and similar uses, including garages and carports; and bathhouses and comfort stations, open park pavilions, boat houses, picnic tables and benches, playground equipment, recreational open play courts, and recreational outdoor lighting and landscaping. 63 Potentially adverse affects are mitigated at least in the most hazardous flood-prone areas by the requirement that applications for exemptions in the coastal high hazard district contain a statement from a registered professional engineer that to the best available technical knowledge and information, the structure does not adversely affect the regulatory flood on surrounding properties. 04

Coordination with other Federal Programs Pursuant to Executive Order 11988, all federal agencies are required to conduct their activities in a manner consistent with the objectives of the National Flood Insurance Program. 63 The problem of coordination has been particularly acute with respect to the U.S. Department of Transportation's Federal Highway Administration, whose design standards and approved routes for federally funded highways often traverse or follow floodplains—which are flat and even-graded—for considerable distances. Indeed, some federal officials have wondered aloud whether they may not be promoting (if not requiring) some contradictory local activities. It would not be the first time. 66 Hawaii's four counties are well on their way to full participation in the National Flood Insurance Program. The extent to which the various ordinance amendments, passed pursuant to Federal guidelines and standards, will begin to affect development is therefore unclear—for the moment. Unfortunately—and obviously—the subsidizing of structures in a flood hazard zone by means of insuring against losses tends to encourage building in that zone, despite the onerous land use regulations the FDPA requires of local governments as a condition for insur-

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anee. Moreover, it has taken so long for the various government agencies to produce the maps and data and issue the regulations that are necessary before the flood-proofing and development regulations can be required that little has happened in the decade since the FDPA was passed. 67 The extent to which the granting of exceptions and variances may tend to soften the effect of these ordinances also remains to be seen. Given Hawaii's substantial coastal areas and the tendency, so far, to develop it, the coastal hazard program responses of the counties, and their implementation, will bear watching. Enforce they must, however. The federal government has taken an increasingly hard line with communities that have failed to enforce their floodplain regulations and has actually sued several local governments in Louisiana to recover nearly $100 million in national flood insurance claims paid by the U.S. government for flood damage to structures either built in areas that should have been development free or built improperly in flood-prone areas, contrary to local regulations that the local governments allegedly failed to enforce.®8 If the United States is successful in persuading the federal court that the fault—and the liability—lies with local government for the flood damage because they failed to enforce their own ordinances, this will be a powerful incentive for stringent enforcement nationally.

9 NEPA and SEPA: Form Over Substance Review of the decision on the merits is not required by NEPA. The project when finished may be a complete blunder—NEPA insists that it be a knowledgeable blunder. Matsumoto v. Brinegar (1971)

T h e explosion of environmental consciousness that characterized the late 1960s and early 1970s produced an avalanche of environmental protection laws and decisions. 1 T h e years that followed this "environmental a w a k e n i n g " resulted in a backlash of sorts, which is not yet expended. C o m m e n t a t o r s from all walks of professional life pilloried t h e excesses of environmental regulation and pointed with horror to its e c o n o m i c costs, most particularly on the development of land. 2 In terms of delay, litigation, and the costs associated with b o t h , the National E n v i r o n m e n t a l Policy Act has been a prime target. F o r environmentalists it has, on the other hand, proved to be a surprisingly hardy and handy tool for both promoting disclosure of the environmental consequences of governmental action and for delaying those projects suspected of environmentally adverse consequences.

The National Environmental Policy Act T h e National E n v i r o n m e n t a l Policy Act (NEPA), enacted in 1 9 6 9 , is essentially a comparatively brief statement of environmental policy giving the federal government the responsibility to "use all p r a c t i c a b l e means, consistent with other essential considerations of national policy, to improve and coordinate federal plans, functions, programs and resources" to meet the following national objectives: 1. fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; 2. assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings; 3. attain the widest range of beneficial uses of the environment with-

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out degradation, risk to health or safety, or other undesirable and unintended consequences; 4. preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice; 5. achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and 6. enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources. 3 NEPA's critical requirement is the preparation of an environmental impact statement (EIS) for all major actions significantly affecting the quality of the human environment. As set out in the act, federal agencies are required to: Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources, which would be involved in the proposed action should it be implemented. 4

From the beginning, the federal courts have interpreted the responsibility for an agency's preparing EISs literally, even if that meant stalling or stopping major projects, despite the fact that NEPA nowhere provides for the termination of a major federal action regardless of the environmental consequences. 5 Thus, in NEPA (and in Hawaii's Environmental Impact Statement law) may be seen examples of one of the outstanding paradoxes of land use and environmental law: statutes that, by themselves, cannot prevent government from undertaking environmentally disastrous projects but that have nevertheless been successfully used to halt projects for procedural irregularities in their implementation. 6 NEPA and its stateenacted clones—state environmental policy or protection acts (SEPAs) —like Hawaii's statute are environmental impact assessment laws, setting out procedures for the formulation and content of EISs with respect to prospective governmental actions expected to significantly affect the environment. While there is some drift toward giving both NEPA and

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SEPAs substantive impact, these laws remain primarily evaluative and informational in nature.7 As the court said in Matsumoto v. Brinegar in 1971, NEPA (and most SEPAs) merely require that when government makes an environmental blunder, it be a knowledgeable blunder.8 In quick succession, the courts made a number of important rulings in regard to NEPA: (1) all federal agencies must themselves undertake environmental impact analyses regardless of cost and delay for power plants designed to alleviate a national power crisis;9 (2) a "major action" includes not only obviously environmentally sensitive projects like the licensing of nuclear power plants but also the building of jailhouses in New York (potential environmental effects include sociological factors like a potential increase in crime in the area); (3) if an agency decides that the effects of a federal action are not significant, NEPA requires that "some rudimentary procedures be designed to assure a fair and informal preliminary decision" (this was later written into specific regulations requiring an environmental assessment process to decide whether an EIS was necessary);10 (4) "all federal actions" means all federal actions, regardless of the agency and its presumed environmental sensitivity;11 and (5) while not requiring a "crystal ball" inquiry, consideration of alternatives must be broad-ranging, even if some alternatives are so far beyond the power of the acting federal agency that it would require new federal laws.12 The result of these early holdings was to open a floodgate of litigation by various citizens' coalitions and environmental groups attacking federal and federally funded projects from airports to freeways, lowincome housing projects, and geothermal steam exploration for violation of NEPA's procedural requirements.13 By January 1, 1979, 1,052 NEPA cases had been filed against federal agencies.14 Both the preparation and evaluation of a NEPA environmental impact statement entail a great deal of work on the part of the agency involved. However, the federal Council on Environmental Quality (CEQ), which is charged with administering NEPA, has begun to cut back on the morass of EIS requirements into which all federal projects, both environmentally sound and unsound, have increasingly fallen. In 1979, the CEQ issued revised regulations for the purpose of streamlining the EIS process and reducing paperwork.15 Essentially, the regulations provide that EISs should normally contain no more than 150 pages, and 300 at the outside in cases of unusual complexity and scope. They also encourage the process of "scoping" and "tiering." Scoping is the early identification of those important issues requiring full analyses and environmental review and consultation responsibilities. Tiering is the use of a general "program" EIS at the commencement of a long-

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term project and site-specific ones as the project progresses. The new regulations also encourage cooperation and joint EIS preparation with state and local governments operating under state environmental impact laws, as discussed below.

NEPA in Hawaii The impact of NEPA has been considerable on Hawaii, not only in terms of the voluminous environmental assessments and impact statements filed on proposed major federal actions (the one for the proposed H-3 freeway on Oahu is said to consist of seven volumes), but also because litigation under the act has halted major public works projects, despite considerable support for them at various governmental levels. The effect on the use of land in Hawaii goes well beyond whether a particular public project proceeds. Whether or not a major transportation facility or network is constructed, for example, will have major effects on the development of land along transportation corridors (at highway interchange and transit stops, which tend to generate intense commercial and residential activity) as well as at their terminus, as experience elsewhere clearly indicates. 16 As with most NEPA litigation, the critical issues in Hawaii have been the decision to file or not to file an EIS and the adequacy of an EIS once filed. The EIS requirements of NEPA have been invoked in court only a few times in Hawaii, and mostly for obviously significant federal projects: a freeway, an airport runway, naval bombing, highway widening, and the storage of nuclear weapons. Two examples indicate how NEPA has been used to slow or stop federal actions. The H-3 freeway flap is the most protracted and detailed of the NEPA litigation in Hawaii. In the early 1970s a coalition of various public interest groups, the Stop H-3 Association, sued under NEPA to stop construction of a third freeway through the Koolau mountains linking leeward and windward Oahu. As the proposed highway would be primarily federally funded, it constituted a significant federal action. There was no question that it would have a significant impact on the quality of the environment. The Stop H-3 Association successfully persuaded the federal court in Hawaii to stop all design work on, preparation for, or any other commitment to the project until an EIS was completed. When an EIS was filed in 1974, the coalition claimed it did not adequately discuss the need for a third highway, what effect it would have on historic places, measures to mitigate adverse effects, and reasonable alternatives—all of which are required by NEPA. The State of Hawaii shifted the route of the proposed freeway to pass through Halawa Valley

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rather than through Moanalua Valley, as originally planned. An EIS revised to reflect that change was approved in late 1980 by the U.S. Department of Transportation and accepted by the U.S. Environmental Protection Agency in early 1981. 17 However, the Stop H-3 Association has returned to federal court to block this new route as well, partly on the ground that the original injunction against the Moanalua Valley route applies to the Halawa route also. The island of Kahoolawe has for years served the U.S. Navy as a practice target for assorted bombs, bullets, and rockets. It is also dotted with ancient Hawaiian ruins of varying quality and in various states of preservation. A Hawaiian environmental protection group, the Protect Kahoolawe Ohana, since the late 1970s has been moderately successful in its attempts to persuade, cajole, or force the navy to reduce (and eventually halt) the bombing. One of its principal legal tools is NEPA. The navy had already filed an EIS for its use of Kahoolawe as a bombing target and has resisted attempts by the Protect Kahoolawe Association to force it to file another, despite new information on historic sites on the island. The federal court, however, decided in 1977 that a new EIS was necessary, given the discovery of ninety-two additional archaeological sites on the island and a presidential executive order that requires federal agencies to make sure that federal plans and programs help preserve nonfederally owned sites and objects of historical and archaeological significance. This the navy had not done. But the court did find the navy was sufficiently diligent in establishing its targets away from archaeological sites and moving them as new sites were discovered, and refused to halt the bombings. 18

SEPAs and Hawaii The use of SEPAs—state environmental policy acts—grew out of a need by state and local government to "catch" those governmental activities with significant environmental effects in which the federal government does not participate—and so are not covered by NEPA. The number of SEPAs has grown significantly in the past ten years with at least fourteen states having comprehensive programs and thirteen others having limited EIS requirements. 10 The scope of SEPAs was considerably expanded by a 1972 California court decision, which held that the simple granting of a development permit by a county is sufficient to require an environmental assessment process under a state environmental quality act. 20 Another state court held that significant adverse environmental impacts (a negative EIS) alone are grounds for a building official to refuse to issue a local building permit. 21 Whether he could be prohibited

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from issuing such a permit in the face of a negative EIS is another question, however. 22 T H E HAWAII ENVIRONMENTAL IMPACT STATEMENT L A W

The Hawaii Environmental Impact Statement (HEIS) law was passed in 1974.23 The HEIS sets out in detail the circumstances under which an EIS, or at least an environmental assessment, must be filed by a governmental agency. A project for which an EIS is necessary may not proceed until the EIS is accepted. Therefore, the critical elements in the EIS process are the circumstances that trigger the environmental assessment and statement requirements, and acceptance. The HEIS law defines environmental assessment as "a written evaluation to determine whether an action may have a significant environmental effect." 24 The EIS itself is defined as "an informational document . . . which discloses the environmental effects of a proposed action, effects of a proposed action on the economic and social welfare of the community and State, effects of the economic activities arising out of the proposed action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects." 25 The act then sets out a series of actions that require the preparation of an environmental assessment at the earliest practical time, to determine whether the effects may be significant, thereby requiring the preparation of a full-blown EIS. 28 First, any proposal to use land in the state's conservation district as described in the State Land Use Law requires an assessment. Usually, such uses will also require the permission of the board of the Department of Land and Natural Resources (the Land Board), which is generally guided in its land use decisions by its own comprehensive Regulation No. 4. 27 Moreover, in 1981 the Hawaii Supreme Court decided that an EIS is necessary for any change or reclassification by the Land Use Commission of land from the conservation district to the urban district. 28 Second, proposed land uses in the shoreline setback coastal area established by the State Land Use Commission must be assessed. This setback zone, administered by the counties, is between twenty and forty feet inland from the wash of the waves. 29 Third, use within a historic site listed on either the National or Hawaii Register of Historic Places triggers the assessment process. This review falls somewhat short of the process required under the National Historic Preservation Act for federal actions affecting sites merely eligible but not yet listed. Moreover, "use" is not defined and may not include activities in or on a listed site that merely require notice to the

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state historic preservation officer. The problem of whether an EIS is required under such circumstances has already surfaced in the continuing dispute over the Royal Hawaiian Hotel. 30 Fourth, amendments to the county general plans trigger the assessment process. However, many of the county general plans are not so specific with respect to land use at particular locations that an amendment would result in any effect on land use designations whatsoever. It is the more detailed development plan that serves this function. 31 If the intent of this section is to require an assessment whenever county plans are amended to permit a developmental use, then clearly the general plan amendment is the wrong point in the planning process to require an assessment. Finally, any proposed use in the Waikiki-Diamond Head area requires an assessment.32 The extent of the coverage of proposed actions is evident after examining the definitions of key terms in the HEIS law: "action" refers to "any program or project to be initiated by any agency or applicant"; an "agency" is "any department, office, board or commission of the state or county government which is a part of the executive branch of that government"; and an "applicant" is "any person that, pursuant to statute, ordinance, rule, or regulation, officially requests approval for a proposed action". 33 Thus, the only apparent limitation is whether the effects of a proposed action, which activates the assessment process, will be sufficient to trigger the EIS process. Assessments appear to result in an EIS only 8 percent of the time. 34 All assessments are prepared by an agency. Thus, whether an agency or an applicant proposes an action, it is the agency that prepares the assessment. It then files that assessment with the Office of Environmental Quality Control (OEQC) for publication. Only if the assessment results in an agency determination (based on its own assessment) that an EIS is necessary, is the question of whether the proposal is put forth by an agency or an applicant significant. If an agency, the EIS is prepared by the agency and filed with the O E Q C , which makes it available to the public for comments, to which the preparing agency is required by statute to respond in writing. The authority to "accept" the EIS lies with either the governor or the mayor or their authorized representatives, depending upon whether the proposed action contemplates the use of state or county lands/funds. The decision for or against acceptance is also published by the OEQC. 3 5 If, on the other hand, the proposer is an applicant, then the EIS is prepared by the applicant, who files it with the assessing agency. The rest of the process is the same, except that the applicant not the agency is responsible for responding to public comment, and it is the assessing agency rather than the governor or mayor that must, within sixty days

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of receiving the EIS, decide whether to accept it. Silence beyond the sixty-day period signifies acceptance. Finally, the agency is required to provide an applicant with reasons for its acceptance decision. In cases of nonacceptance, the applicant may appeal to an Environmental Council (described below), which must also make findings and give reasons for its decision. The agency must abide by the council's decision.36 The question of jurisdiction, both among agencies and between HEIS and NEPA, is also resolved by HEIS. If an applicant requests approval from more than one agency, it is the OEQC that decides which agency is responsible for the assessment and EIS processes described above. When an action is subject to both HEIS and NEPA, directives of cooperation include the authorizing of joint EISs. 37 Finally, the acceptance process is informational only: " 'Acceptance' means a formal determination that the document required to be filed pursuant to section 343-5 fulfills the definition of an environmental impact statement, adequately describes identifiable environmental impacts, and satisfactorily responds to comments received during the review of the statement."38 Thus, no substantive approval of a particular project on environmental merits is apparently contemplated by the act. 39 Whether the Hawaii courts would allow denial of a permit to proceed on the basis of a negative EIS alone as the court in the state of Washington did in a case heard in 1978 remains to be seen.40 T H E O F F I C E OF E N V I R O N M E N T A L Q U A L I T Y C O N T R O L AND THE ENVIRONMENTAL COUNCIL

The Office of Environmental Quality Control and an Environmental Council administer the EIS process in Hawaii. The council issues EIS rules and hears appeals (from agency determinations) regarding the adequacy of EISs. The council is composed of fifteen members appointed by the governor representing labor, management, the construction industry, environmental interest groups, real estate groups, and architectural, engineering, and planning professions.41 The council's appellate function is potentially its most critical. Should an agency fail to accept an EIS, an applicant may (within sixty days) appeal that decision to the council. The council then holds a public hearing on the island where the proposed action is to take place. As noted previously, the council's decision is binding upon the agency.42 Apparently there has been only a single such appeal over the acceptability of an EIS, and it was dropped after an amended EIS was filed and subsequently accepted by the relevant agency. This lack of appeals is due in part to the relatively few EISs that have been deemed unacceptable by the reviewing agencies.43 The legislature created the OEQC in 1983 to take the place of the Environmental Quality Commission effec-

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tive January 1, 1984. The OEQC, through its governor-appointed director (also a member of the Environmental Council), implements the HEIS and administers the EIS process described above, except for the appellate and rule-making functions of the old commission, which the Environmental Council now carries out.44 T H E R O L E OF T H E COURTS

It is, of course, possible that a project or development will begin without either an assessment or an EIS, even though one or the other may be required by statute. Then the EQC may sue to enjoin the project until the reviewing agency has made an assessment, so long as such suit is initiated within 120 days from the commencement (whenever that is) of the project. The decision of a reviewing agency that an EIS is or is not necessary is also reviewable in court, provided that action is commenced within 60 days of the publication of the agency's determination in the EQC Bulletin.45 Finally, the acceptance (by an agency, the governor, or a county mayor) of an EIS may also be challenged by a suit filed within 60 days of the publication in the EQC Bulletin of the decision to accept.46 A number of cases have been filed challenging the adequacy of either the assessment not to require an EIS or the EIS itself. So far, however, only one has been decided by the Hawaii Supreme Court: Life of the Land v. Ariyoshi.47 There, the court held that the lack of a cost-benefit analysis did not affect the adequacy of a state EIS. Of the remaining cases, nearly all are on appeal to the Supreme Court.48 Among the issues to be resolved: whether the opening of West Oahu College in existing facilities required an EIS; whether the Land Board's decision that construction of underground facilities on conservation land owned by the state was exempt is supportable; whether actions that would presumably have been covered but that were taken prior to the enactment of HEIS nevertheless trigger the EIS process if a contract based on such prior actions is executed after HEIS's effective date; the sufficiency of a negative declaration by the Land Board concerning a decision to permit the diversion of stream water allegedly curtailing stream use and endangering or destroying fish; whether the failure to object to a negative declaration within the statutory time period precludes plaintiffs from suing to require an EIS; and whether an assessment of a Department of Land and Natural Resources decision to permit grazing in a game management area was made on "sufficient information." Clearly a number of issues regarding the HEIS will be resolved as cases are heard and decided by the Hawaii Supreme Court over the next

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few years. Moreover, whether the state EIS should become (or be courtinterpreted to become) more than informational only and a basis for refusing development permits could well become an issue in Hawaii as elsewhere. Finally, the use of NEPA to stall federally funded public works projects continues to be a viable tool for Hawaii's many public interest groups, though this is increasingly less common elsewhere in the United States. The eventual resolution of the controversy over the location and construction of the H-3 freeway across the Koolau mountain range may result in a similar development here in Hawaii.

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Clean Air: A Hawaiian Monopoly? "[OJverall, the nation's air quality is improving." Environmental Quality, 1979

Government, and in particular the federal government, got into the air pollution control business in 1970 with amendments to the Air Quality Act of 1967. 1 In many ways, the Clean Air Act is the toughest of federal laws affecting the use of land and the one that, in the past dozen years, has substantially affected the use of land. 2 This is so at least in part because it deals directly with the use of land. 3 State and local governments, the actual administrators of the federally mandated clean air program, have no choice about whether or not to participate. 4 The Clean Air Act requires state and local governments to implement clean air measures in substantial part through land use controls. Basically, the Clean Air Act provides for geographically uniform federal quality standards for ambient air (the air around us) to be established with respect to certain key pollutants by the administrator of the Environmental Protection Agency (EPA). The standards are to be enforced by the states through a state implementation plan (SIP), which the administrator may approve only if it meets the standards. If not, the administrator may draw up and issue an SIP for a recalcitrant state. The act also provides for the promulgation of emission standards (for air at a point of discharge into the atmosphere) for new stationary sources of pollution (factories, power plants, and the like), for certain hazardous air pollutants, and for pollutants from motor vehicles. 5 Various lawsuits and amendments to the Clean Air Act in 1972 and 1977 have added requirements for the prevention of significant deterioration of air quality in clean air regions, the designation of air quality maintenance areas, and the need for preconstruction reviews of new major stationary sources of pollution. Finally, the amendments suggest that a state divide all its air quality maintenance regions into three zones, which, other things being equal, regulate the number of new pollution sources—and hence the use of land—in each. 8 Hawaii has few significant stationary pollutant sources, and although

Clean Air its mobile source (automobile) is significant, the trade winds disperse most of the pollution. Therefore, the land use impacts of the Clean Air Act on Hawaii may be the least onerous in the fifty states. What follows is a brief summary of those provisions of the act that have the most effect on land use control and are or may be relevant to Hawaii.

Clean Air: An Overview The primary purpose of the Clean Air Act is "to protect and enhance the quality of the nation's air resources so as to promote the public health and welfare and the productive capacity of its population."7 To do this, Congress directed the EPA to promulgate primary and secondary ambient air standards for those pollutants (1) the emissions of which cause or contribute to air pollution that may endanger health or welfare and (2) the presence of which results from numerous or diverse mobile or stationary pollution sources. The act defines national primary ambient air quality standards as those necessary to protect public health. National secondary ambient air quality standards are those required to protect the public welfare. 8 The EPA has listed seven air pollutants and issued technical primary and secondary standards for each. 9 The primary standard is theoretically lower—that is, one can presumably pollute more—than the secondary standard, which "includes, but is not limited to, effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being."10 Generally, the primary standards for the various air pollutants must be attained as expeditiously as is "practicable" but not later than three years from the date of approval of an SIP. Secondary standards must be attained within a reasonable period of time. 11 While the federal government thus sets the standards and identifies the critical air pollutants, it is up to the states—and ultimately local government—to devise a plan to meet the standards and therefore to maintain air quality. The principal vehicle for so doing is the SIP. In general, a state implementation plan must include, provide for, or contain the following in order to be approved by the EPA: 1. attainment of primary and secondary standards within prescribed time periods; 2. emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or second-

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ary standard, including, but not limited to, transportation controls, air quality maintenance plans, and preconstruction review of direct sources of air pollution as provided in no. 3, below; a program to provide for the enforcement of emission limitations and regulation of the modification, construction, and operation of any stationary source, including a permit or equivalent program to assure attainment and maintenance of primary and secondary standards; a State commitment for sufficient personnel, funding, and authority to carry out the SIP; the inspection and testing of motor vehicles (to the extent necessary and practicable); a commitment that no major stationary source will be modified or constructed in nonattainment areas; [and] the prevention of significant deterioration requirements are met. 1 2

Requirements 1, 2, 6, and 7 have the most significance for land use in Hawaii. All of the above, with the exception of prevention of significant deterioration, will have an effect on land use in areas where the quality of air is near or exceeds the primary or secondary ambient air quality standards. This is so because no major new development or growth that results in increased air pollution would be allowed in "polluted" areas. The requirements of attainment and maintenance of national air quality standards will have a major impact on the location and direction of urban growth in such areas. 13 The prevention of significant deterioration requirement will have an impact on new development and growth in areas where air quality is still relatively good. Thus, these requirements amount to control of development and urban growth in both clean and polluted areas. Although amendments to the Clean Air Act in 1972 specifically eliminated land use controls from SIP requirements in the original act, legislative history concerning the amendments makes clear that land use controls are not forbidden—at least to control direct sources of pollution—as means of implementing clean air standards. 14 Hawaii filed its SIP in 1972. For purposes of air quality maintenance, the entire state is a single air quality control region. While the federal government has determined that Hawaii fails to comply with the Clean Air Act in a number of minor respects, these violations are probably not critical, falling as they do into areas that either affect the quality of air only marginally or deal with subjects that, because of the high quality of air in the state, are only marginally applicable to Hawaii. Much of the current activity of the state Department of Health, which is responsible for the state's air pollution program, is concentrated on revising and updating Hawaii's SIP. 15

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PRECONSTRUCTION REVIEW

As noted earlier, amendments to the Clean Air Act require SIPs to include a procedure for preconstruction review of every new major stationary source or modification of an existing stationary source for which a new-source performance standard has been established by the EPA. The purpose of the review procedure is to insure that national primary and secondary ambient air quality standards will be attained or maintained. 16 The result is a federally required review of many new commercial, industrial, public utility, and institutional developments. Regardless of underlying local zoning or other state land use regulations, a "bad" review can result in the delay of that particular development project until its air pollution problems can be eliminated. If the state or local government will not properly undertake the review under their SIP, the administrator of the EPA has the power to write the procedures and enforce them. The requirement that the location of proposed stationary sources of pollution be reviewed prior to construction was established by the act as a complement to the requirement that stationary sources meet emission limitations (new-source performance standards) established by the EPA. 17 These performance standards prescribe the maximum amount of particulate matter or gases that can be emitted from major stationary sources. Such limitations alone, however, cannot insure the attainment and maintenance of ambient air quality standards. For instance, the location of a new stationary source of pollution such as a power plant or an incinerator in a heavily developed urban area would almost certainly jeopardize the attainment or maintenance of the air quality standards in that district, even if it met the new-source performance standards.18 Likewise, the location of a large source in a valley, where air may be trapped for days, would have a substantially greater adverse impact on ambient air quality than the location of the same source on the coast, where pollutants are usually more widely dispersed. Of course, locating on the coast might fall afoul of at least two other federal programs: Coastal Hazards Protection and the Coastal Zone Management Program—and the locally adopted regulations implementing them. 19 The preconstruction review amendments require the SIP to contain legally enforceable procedures that will enable the state or local government to determine whether the proposed facility, building, structure, or installation would: (1) violate, directly or indirectly, the "control strategy" or (2) interfere with either maintenance or attainment of any national ambient air quality standard, directly or indirectly, because of "mobile source activity" (automobile and truck traffic associated therewith). Other sections of the amendments set out the kinds of

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submissions the enforcing agency must require of developers and the administrative procedures to be used in making decisions.20 By statute and regulation, Hawaii has adopted a preconstruction review procedure that involves both a permit and a registration process. The permits required are (1) the authority to construct and (2) the permit to operate. No new source of pollution may be constructed, modified, or put into operation until these two permits are obtained from the director of the Department of Health. Moreover, the director cannot approve the permits unless the new source is (1) designed, built, and equipped in accordance with the best practicable control technology so as to reduce emissions to a minimum; (2) designed and will be constructed or modified to operate without causing a violation of applicable rules and regulations; and (3) will not endanger the maintenance or attainment of applicable ambient air quality standards.21 These determinations are made during the preconstruction review process. There are other areas—some with marginal land use impacts—that are specifically covered by the regulations, such as open burning in agricultural areas, "fugitive" dust from construction sites, and control of motor vehicle emissions.22 In the latter category, it would no doubt come as a surprise to most of Hawaii's drivers that the motor vehicle emission regulations prohibit the running of an engine "while the motor vehicle is stationary at a loading zone, parking or servicing area, route terminal or other off-street areas unless the engine is being repaired."23 AIR QUALITY MAINTENANCE AREA ( A Q M A ) PLANS

In its SIP, each state is required to identify areas that, due to the current air quality and/or the projected growth rate, may have the potential for exceeding any national primary or secondary ambient air quality standard within a subsequent ten-year period.24 It must then develop a plan —designated the air quality maintenance (AQMA) plan—for making sure that such development does not exceed these standards, with control measures to ensure that it does not. The state must include the following in the AQMA plan: (1) a description of each control measure that is incorporated into the AQMA plan; (2) the enforceable laws and regulations to implement the measures adopted in the AQMA plan; (3) a description of administrative procedures to be used in implementing each selected maintenance measure; and (4) a description of enforcement methods.25 A key component of the plan is the identification of legal authority to enforce these control measures. At either the state or local government level, "an AQMA plan must demonstrate that the State has the legal authority to enforce all control measures contained in the AQMA plan

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unless the AQMA plan provides a demonstration that a substate entity has the legal authority and responsibility to enforce such measures." 26 Hawaii has failed to identify areas of the state that could have the potential for exceeding the national ambient air quality standards within ten years. However, the EPA has determined that there are presently no areas of the state with the potential to violate the standards within the next ten years. 27 PREVENTION OF SIGNIFICANT DETERIORATION ( P S D )

Provisions for the prevention of significant deterioration in the quality of so-called "clean-air" regions (where the quality of air as measured by the standards for the seven pollutants previously discussed exceeds national ambient air standards) is written into the 1977 clean air amendments to the Clean Air Act. 28 Each SIP must designate PSD areas where air quality is better than the national ambient air quality standards. PSD areas are divided into three classes. Class I is an area in which practically any change is deemed significant and to be prevented. It is to be the most vigorously protected. 29 International parks, national wilderness areas that exceed five thousand acres, and national memorial parks that exceed five thousand acres are required to be so classified. 30 Class II areas are those in which deterioration of air quality normally accompanying moderate growth is not considered significant. All PSD areas except original Class I areas must initially be classified into this area but are subject to reclassification, to Class I or Class III, depending upon a state's growth plans. 31 Class III areas are those in which deterioration is permitted up to the national secondary ambient air quality standards, thus allowing for the greatest (in most cases) increment of pollution—and land use permitting growth. 32 One of the important elements in permitting "nonsignificant" deterioration in Classes II and III, besides the national ambient air quality standards themselves, is the level of pollution from which one starts— known as the subject area's "baseline concentration" and defined in the act as the pollutant concentrations of the seven named pollutants at the time of the "first application for a . . . [PSD] permit." 33 No major emitting facility may be constructed unless the PSD requirements are satisfied, as follows: 1. a permit has been issued; 2. the permit has been reviewed in accordance with the Act and regulations, and a public hearing has been held; 3. the owner or operator of such a facility demonstrates that the facility will not cause or contribute to air pollution in excess of allowa-

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ble levels of emissions within the classified area and will not exceed national air quality standards; the proposed facility is subject to the best available control technology for each pollutant subject to regulation; Class I areas will be protected; there has been an analysis of any air quality impacts projected for the area as a result of growth associated with such facility; [and] owner or operator agrees to monitor emissions.34

The PSD requirements are enforced via the SIP through the preconstruction review process by which the permit is obtained, and the EPA has the authority to ensure that they are. 35 Twenty-eight categories of major sources of pollution are specifically identified—if they have the potential of emitting 100 tons or more of pollutants a day—as well as any other source that has the potential of emitting 250 tons per day.36 In conjunction with the PSD requirements, Congress enacted provisions to prevent future impairment of clean-air regions and to remedy existing impairment of visibility in mandatory Class I areas. Impairment of visibility is in part defined as reduction in visual range and atmospheric discoloration. Perhaps the most significant provision of the visibility requirements is that each major stationary source is required to install the "best available retrofit technology" (BART) if it might cause or contribute to any visibility impairment in mandatory Class I areas. 37 Under this provision, existing sources of air pollutants that affect Class I areas must install the best pollution control equipment available. In addition to the BART requirement, the EPA must develop a long-term strategy for remedying any impairment of visibility in mandatory Class I areas. All areas of Hawaii, except certain national areas required to be Class I, are designated as Class II. At the present time the state has no intention of redesignating any areas to Class III. The EPA found the Hawaii SIP inadequate with respect to the PSD requirements, since it does not include "approvable" procedures for preventing the significant deterioration of air quality.38 A T T A I N M E N T P L A N S FOR N O N A T T A I N M E N T A R E A S

Most of the foregoing deals with areas in which the quality of the air— in accord with the primary and secondary national ambient air quality maintenance standards—was to be maintained. What follows deals with the problem of attaining those standards in dirty-air areas. To assist in the development and implementation of SIPs, the EPA divided each state into air quality control regions, or AQMAs.39 On the

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basis of its air quality, each region is classified as priority I, II, or III for each of the seven listed pollutants. Priority I indicates a high level of the particular air pollutant. Priority II indicates a moderate level of the particular air pollutant. Priority III indicates a low level of the particular air pollutant. 40 EPA regulations specify for each air pollutant the volume/level of the pollutant, which results in a priority I, II, or III classification. The major purpose of establishing priorities with respect to each air pollutant within air quality control regions is to aid in the development and evaluation of SIPs.41 Thus, if a region of a state is classified as priority I with respect to carbon monoxide, the state and the EPA will know that the SIP must contain a strategy to attain the primary and secondary air quality levels for carbon monoxide in the region. These priority classifications should not be confused with the national ambient air quality standards and prevention of significant deterioration (PSD) classifications discussed above. The designation of priority classifications does not in any way affect the requirements that a state must attain ambient air quality standards and prevent "significant deterioration" of air quality. In those AQMAs that are nonattainment areas, that is, areas where the quality of the air does not meet the national standards, a state must adopt as part of its SIP a strict attainment plan that schedules a tight timetable for meeting the national ambient air quality standards. Failure to meet the deadlines will result in a ban on all future construction permits for major emitting facilities.42 Generally, the attainment plan must specify, for all proposed new or modified major sources of pollution, control devices that meet the "lowest achievable emission rates" (LAER) before a construction permit can be granted. 43 In addition, all existing sources must install "reasonably available control technology" (RACT) to insure further progress toward attainment of national ambient air quality standards. 44 A state's failure to adopt a satisfactory plan to achieve the national standards (including transportation control measures) would block federal funds for certain EPA and Department of Transportation programs. 45 Upon approval of the state attainment plan, federal agencies may not participate in any activity that does not conform to the SIP.46 The tripartite classification together with the perceived need of both developed and developing communities to locate polluting facilities in their areas resulted in the formulation of the EPA's so-called "offset policy."47 As described in the 1977 amendments, a permit for a new source (or a modified existing source) to commence operation in a nonattainment area would in part be conditional upon a reduction in the level of the pollutants that would be emitted by the said source elsewhere in the

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area, so that the total emissions of that pollutant would remain the same or be lowered. By the time the source is to commence operation, total allowable emissions from existing sources in the region, from new or modified sources which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources allowed under the applicable implementation plan prior to the application for such permit to construct or modify so as to represent . . . reasonable further progress. 48

The source must, of course, meet additional requirements in order for the SIP to move the area toward eventual attainment of the national ambient air quality standards, in part through the regulation of new sources and the cleaning up of existing sources. These require that emissions of pollutants from a proposed source will not cause or contribute to emission levels that exceed that allowance permitted for the pollutants in such areas from new or modified major stationary sources. The proposed source must comply with the lowest achievable emission rate, and the owner or operator of the source must have demonstrated that any other major stationary sources he or she owns or controls in the state are subject to emission limitations and are in compliance with, or scheduled for compliance with, all applicable limitations and standards required under the act. Furthermore, an implementation plan must be carried out for the nonattainment area in which the proposed source is to be located, in accord with the act. Finally, "any emission reductions required as a precondition of the issuance of a permit . . . shall be legally binding before such permit may be issued."49 It is also possible under EPA regulations interpreting the offset policy for a state to "bank" air quality increments to save for future growth, by requiring existing sources in nonattainment areas to clean up to a level below the national ambient air quality standards. This would provide a "growth margin," to the extent that air quality (or the lack thereof) would otherwise be an inhibiting factor for growth and development. 30 This part of an SIP dealing with offsets in dirty-air areas is likely to have little significance for Hawaii, where there is, quite simply, very little dirty air. There are two nonattainment areas in Hawaii, however: (1) the area within two kilometers of the Maui Electric Company power plant at Kahului and (2) the area within two kilometers of the Hawaiian Electric Company Power Plant at Kahe Point on Oahu. Both areas fail to meet national ambient air quality standards with respect to sulfur dioxide. 51 In addition, the Kahului area fails to meet the same standards for

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total suspended particulates (TSP). The Hawaii Department of Health has prepared an attainment plan that is expected to meet federal requirements. 32

Clean Air and the Land Development Process in Hawaii The potential effect of the Clean Air Act air quality standards on the use of land may well come home to Hawaii over the designation of the Ewa-Makakilo area in West Oahu as a secondary urban center. It is apparently contemplated that this designation will result in a modest expansion of industrial activity in and around the nearby Campbell Industrial Park. According to officials in the Department of Health, studies indicate that the area is very close to reaching the national secondary ambient air standards for sulfur dioxide, which would normally result either in: (1) the limiting, not the accelerating, of growth in the area or (2) designating the area Class III (a dirty-air area), which would be distinctly incompatible, for example, with plans to develop the coast there as a resort destination. 53 The matter of land use in the area is addressed in the current development plans for the City and County of Honolulu, though whether the air quality problem will be a factor is not at all clear. The issue of meeting federal ambient air standards is also reasonably critical in the Kahe Point area near the Hawaiian Electric Company's (HECO) Kahe Power Plant. In order to meet the standards, HECO uses a grade of fuel oil with a lower sulfur content. This is more expensive than the fuel used previously—to the tune of 13 percent of the average consumer electric bill. While theoretically acceptable on its face, it appears that the costs may be unnecessary given that prevailing winds blow the polluted air out to sea nearly 90 percent of the time. HECO has begun proceedings to seek an appropriate exemption from the standards. 54 Should it be successful, the direction in which the wind blows pollutants should have implications for the siting of major stationary pollution emitting facilities—indeed, major development generally— elsewhere in Hawaii. These implications may help mold decisions entirely contrary to those that would result from the consideration of coastal zone protection, for example. Perhaps an equally critical issue is the one raised tangentially in the discussion of plans for Ewa above: uses of land that become incompatible for reasons related solely to diverse air pollution tendencies. In a local variation of the inevitable conflict between the farmer and the householder over odors, homeowners in local residential areas located downwind of sugar cane fields have been heard to object mightily to the

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biennial burnoff of cane about to be harvested. 55 As noted earlier, state air pollution regulations address but do not resolve the problem. Indeed, there is some question whether it is the state's problem or whether it is the counties that ultimately approve such subdivisions. Perhaps the best sollution is to provide prospective homeowners in such areas with written notice of the likely recurrence of odors or pollutants that may be offensive to them. While Clean Air Act standards and state responses thereto may not affect the use of land in Hawaii as much as they do in other states, nevertheless, effects such as those noted above can be expected. It remains to be seen how the issues will be resolved, especially in light of the current federal administration's penchant for deregulation. It is widely expected that the Clean Air Act will bear the brunt of such deregulation in the environmental field. 56

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Clean Water In order to avoid water pollution, national state and local laws could regulate pollutants coming out of a pipe. . . . These laws have land use consequences. Hagman, Public Planning and Control of Urban and Land Development

It is difficult to make effective use of land without discharging something into a waterway. Therefore, the repeated attempts by Congress to see that the United States—and in particular its states and local governments—does what is possible to clean up the nation's waterways have had significant land use consequences. The Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, hereafter referred to as the Clean Water Act or the Water Act, is the complex legislation that was passed to implement that congressional intent. 1 T h e Clean Water Act contains several parts that have a particularly strong bearing on the use of land: 208 wastewater planning, pollution discharge (point and nonpoint source), U.S. Army Corps of Engineers' dredge and fill permit programs, and wastewater treatment plant construction. 2 Drinking water preservation (the "injection" issue), is the subject of separate legislation, closely related to the Clean Water Act. With clean air, coastal zone, flood hazard, and other programs, the federal government drastically affects land use control, long considered to be the domain of state and local government. 3 Since Hawaii is without the great rivers and lakes, the highways of commerce—and industrial sewers—to which the Clean Water Act is principally directed, the applicability of some of the act's land use provisions is somewhat limited. Those programs in Hawaii that presently or potentially affect the use of land most are the facilities construction programs, the water and wastewater planning programs, the related control of point and nonpoint sources of pollution, and the maintenance of safe drinking water from underground sources. 4

The Clean Water Act: A Selective Overview The Clean Water Act has as its principal purpose the cleaning and maintenance of the nation's waters. It attacks the problem broadly by

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means of so-called "structural" and "nonstructural" techniques. 5 The structural techniques pertain to the financing and construction of wastewater treatment plants and ancillary facilities. Nonstructural techniques pertain primarily to regulatory mechanisms, such as planning and land use controls. The purpose of both is to eliminate the discharge of pollutants into the nation's waterways. Initially, most federal money went into the former category, even though there was little, if any, early planning or consideration of the growth-generating potential of large municipal wastewater treatment plants. 8 It became increasingly apparent that all the hardware the federal government could afford for the treatment of pollutants discharged into individual waterway segments was not going to significantly improve the nation's waterways without the plans required by other sections of the Clean Water Act. 7 This shift in emphasis, together with the increased role of the Corps of Engineers in granting or not granting permits to dredge and fill navigable waterways, appears to represent current Environmental Protection Agency (EPA) policy. Inherent in the federal programs, both structural and nonstructural, is the emphasis on their implementation by state and local governments. While it is the federal government that provides most of the money for municipal wastewater treatment facilities, it is the local government unit—city, county, village, special district—that constructs, operates, and maintains the facility and attempts to implement the various rules and regulations concerning connections, pretreatment of effluent, and the like, which come with the money. It is also a regional unit of state or local government that is to do the planning—especially the wastewater management planning upon which much regulatory implementation depends. To state and local governments also falls the job of monitoring, regulating, and enforcing compliance. 8 STRUCTURAL S O L U T I O N S : P L A N T S , PIPES, A N D N P D E S

It is illegal to discharge pollutants into a waterway without a permit from a state agency under the National Pollution Discharge Elimination System (NPDES). 9 Intensive use of land is impossible without some provision for sewage and other waste disposal (usually in waterways); how this program is administered critically affects that use. The NPDES permit requirement extends to both private and public-facility discharges —including publicly owned treatment works (POTWs). The permits are issued by an approved state agency only upon condition that such discharge will meet the effluent and other standards set by the administrator of EPA. 10 For the EPA administrator to approve a state permitting program, the state agency must have the power to revoke a permit

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violating its terms. The state program must also insure that any permit for a POTW will include conditions that guarantee compliance with pretreatment standards for private-source hookups (industrial/commercial facilities connected to the POTW). 11 These standards require the treatment of sewage for the removal of some pollutants before the sewage reaches a POTW, in order to avoid overburdening the plant. 12 The cost of this pretreatment is a factor in the locating of private industry in an area. The permit system is administered in a way to encourage discharge into public wastewater treatment plants, 75 percent of the costs of which are paid for with federal funds in accordance with an approved wastewater management plan for the region. 13 The latter was largely ignored when it became readily apparent that these plans were going to take a while to formulate. As a result, many wastewater treatment facilities were funded with minimal regard for areawide planning and coordination. The effect on growth was in many areas predictably substantial, as treatment works, new or expanded, with substantial treatment excess capacity to accommodate future needs attracted development to the areas they served.14 NONSTRUCTURAL SOLUTIONS: P L A N N I N G

While the structural solutions have been vastly better funded, emphasis in the late 1970s moved to what was intended to precede the construction of wastewater treatment facilities: the areawide waste treatment management or "208" plans (so named because they are required in section 208 of the Clean Water Act), basin plans, and 404 permits. The purpose of the 208 planning process is to halt water pollution by the management of water quality and land use in metropolitan regions.16 The required emphasis on land use controls in the plans is clearly set out in the Clean Water Act. What is not so clear is how such land use controls should be implemented. The 208 plans are required for any area identified by a state's governor as having "substantial water quality control problems . . . as a result of urban-industrial concentrations or other factors." After drawing up the boundaries of such an area, the governor must then designate a single "representative organization including elected officials from local governments" that is "capable of developing effective areawide waste treatment management plans for such area." The plan is to follow within a year.17 It must: 1. identify measures necessary to carry out the plan; 2. establish a process to identify, "if appropriate," agricultural and

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forest related nonpoint sources of pollution, including new, current and abandoned surface and underground mine runoff, construction activity-related sources of pollution, and runoff from agricultural irrigation and fertilization and feed lots, and set forth procedures and methods, specifically to include land use controls, to control "to the extent feasible" such sources; 3. establish a process to identify and set forth measures to control saltwater intrusion "from any cause"; and 4. establish a process to control the disposal of pollutants on land or in subsurface excavations within the area to protect ground and surface water quality. 18 This is particularly critical in Hawaii. The principal areas for 208 planning in Hawaii are each of the four counties. The state Department of Health (DOH) undertook the initial planning efforts, together with a nine-member statewide policy steering committee and several technical and policy advisory committees. 19 The governor approved each of the counties' 208 plans on December 11, 1978, thereby certifying that each was "in conformance with all state and local legislation, regulations, or other requirements or plans regarding land use and protection of the environment, except for those cases where the plan specifically recommends changing such legislation, regulation, or other appropriate requirements." 20 The EPA administrator then approved the plans by 1980. Subsequently, Honolulu, Kauai, Maui, and Hawaii adopted the water quality management plans for their respective counties by council resolution. 21 Essentially, the 208 plan ties in most water quality plan elements and laws in Hawaii: the State Environmental Policy Act; the Hawaii State Plan; the Coastal Zone Management Act; Public Health Regulations; and the Hawaii Safe Drinking Water Act. 2 2 All five plans (the state plus four counties), which make up the 208 plan, are divided into the same seven parts: introduction and background, planning framework, beneficial uses, water quality criteria, assessment of water quality problems, plan adoption (revisions) management, and anticipated impacts. 23 The plans focus on streams and coastal water quality and waste generation and groundwater contamination. Each plan emphasizes, from a land use management perspective, (1) development of enforceable water quality standards; (2) development of a regulatory program for point and nonpoint sources of pollution (point sources are outfalls, pipes, ditches, tunnels, and so forth; nonpoint sources include erosion, sediment, and urban runoff); and (3) establishment of management structures to implement control strategies for (1) and (2). 24 In addition,

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many of the individual county general plans, which have substantial legal effect on land use management and control in Hawaii, contain long lists of water quality-elected goals and objectives. While the potential for controlling development under the Clean Water Act is significant, much depends upon the power and authority under state law of the regional entity charged with implementing the 208 plan. 2 5 Fortunately, as Hawaii has no local governments besides its four counties, the authority of its "regional organization" to implement its 208 plan is not much of an issue. The Clean Water Act requires each state to undertake basin planning, dividing basins into water quality segments and effluent limitation segments. Water quality segments are defined as those coastal water areas where existing water quality does not meet state water quality standards and will not do so even after effluent (discharge) limits on point sources are applied. Effluent limitation segments are those remaining coastal areas where water quality is meeting and will continue to meet those standards. The Clean Water Act also requires each state to establish total maximum daily allowable loads for named pollutants discharged from a point source into parts of streams that have been designated as water quality segments, in order to eventually meet state water quality standards. The EPA established one basin for each of Hawaii's counties and designated ten water quality segments. However, no maximum daily pollutant loads have been established for any water body in the state. 2 « The enforcement of effluent standards from point sources comes via the NPDES program. NPDES enforcement is also discussed in the 208 plan approved for Hawaii. Hawaii was delegated the authority from the EPA to issue discharge permits in 1974 for all discharges except those from federal facilities. Until then, the EPA had issued approximately fifty permits. Since then the state of Hawaii, through the Department of Health, has issued approximately forty and has assumed the responsibility of reissuing and annual monitoring for all of them. It is this program that is responsible for controlling point-source discharges from industrial, commercial, and public wastewater treatment sources. In Hawaii, thermal (steam electric generating plants), and sugar mill wastewater and tailwater (from irrigation systems) are the principal point sources being monitored. In the future, NPDES permits may be needed for manganese nodule processing and leather tanning. 27 So far, most discharges are meeting their NPDES permit requirements with respect to the quality of their discharge as measured by standards issued by the EPA for certain defined pollutants. Point sources governed by NPDES apparently contribute insignificantly to water quality problems

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in Hawaii except in specific areas like Pearl Harbor, Kahului Harbor, and the Hamakua Coast. 28 The greatest proportion of water pollutants comes from nonpoint sources, which do not come under pollutant load requirements on NPDES at all. The main nonpoint sources of water pollution are, as noted earlier, erosion and sediment and urban runoff. 29 Aside from the obvious difference between nonpoint and point-source discharges, the most critical difference is one of abatement methods: nonpoint sources are generally abated by controlling the source, whereas point sources are abated by limiting or treating the effluent. It is nearly impossible to collect and treat, say, agricultural sediment and urban runoff. 30 The EPA generally requires the use of "best management practices" (BMPs) to control and manage nonpoint sources: The term best management practices (BMP) means a practice, or combination of practices, that is determined by a State (or designated areawide planning agency) after problem assessment, examination of alternative practices and appropriate public participation to be the most effective, practicable (including technological, economic and institutional considerations) means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water goals.31

BMPs come in two types: structural (constructions such as dikes, ditches, terraces, filters, traps, and basins) and nonstructural (management and planning). The latter is generally considered both cheaper and more effective. 32 In Hawaii, the major nonpoint source of pollution is sedimentation. Soil is eroded and transported by water, mainly as a result of normal rainfall washing freshly disturbed topsoil into streams and the sea from land development and agricultural operations. The longer the soil remains exposed, the more likely the sedimentation/erosion process will occur. An example of what happens in this case is Kaneohe Bay in Windward Oahu. Once filled with coral and other marine life, it was largely dead (though apparently slowly recovering after drastic state action) due to sudden and prolonged development on the windward side. 33 While Hawaii has laws to prevent erosion, and each county has a soils and sedimentation control program, it has proved difficult to control sedimentation and erosion. Consequently, a technical report was prepared and a series of BMPs suggested to lower the rate of sedimentation and erosion. 34 Section 404 of the Clean Water Act generally prohibits the discharge of dredged or fill materials into navigable—including coastal—waters

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of the United States without a permit from the U.S. Army Corps of Engineers.35 Until the late 1960s, the Corps granted or refused such permits based primarily on the likely effect on navigation of such materials. Thereafter, the Corps, in response to a growing national concern for environmental values and related federal legislation, commenced implementation of a so-called "public interest" permit review process to consider the effect of proposed dredge and fill upon fish and wildlife, conservation, pollution, aesthetics, ecology, and the general public interest.3® Then, in the mid-1970s, the Corps listed additional factors to be considered—economics, historic values, flood damage prevention, land use classification, recreation, and water supply/water quality— together with a policy to protect wetlands from unnecessary destruction. 37 The result is the slow conversion of a relatively simple permitting process directed at preserving navigation into a full-fledged land useenvironmental review of proposed projects in coastal and coastal wetland areas. That the Corps of Engineers is taking an increasingly aggressive stance in protecting coastal areas, with the backing of the courts, is clear from a federal Court of Claims decision upholding the authority of the Corps to deny a dredge and fill permit for the construction of a large residential development in a Florida wetland and bay area. 38 There, the Deltona Corp. had not only obtained all other state and county permits needed for its development, but had in years past also obtained Corps dredge and fill permits for previous phases of the same mammoth project. The Corps' main reason for denial: to protect wetlands under its most recent policies. The court held that while Deltona had "expectations" that a permit would issue, it had no assurance. Since it had other property it was developing, it suffered at most a "diminution" in expectation and property values that, given the public policy of wetland protection, did not rise to the level of a "taking" of property through regulation. 39 The effect of the Deltona controversy and Corps of Engineers policy may soon be felt in Hawaii, where several dredge and fill applications have been pending for some time over the effect of proposed developments on wetlands, pollution, aesthetics, water quality, and coastal recreation. 40

Underground Water Pollution and Land Use While the Clean Water Act contains a reasonably effective regulatory framework in which to deal with surface water pollution, it does not really do the same for underground water. The sources are worth pro-

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tecting. There is four times as much groundwater within a half-mile of the earth's surface as there is in the major surface lakes of all of North America. 41 Of that amount, nearly half is theoretically recoverable, which is fortunate, since groundwater use is increasing at about twice the rate of total water use. 42 Because so much of Hawaii's drinking water comes from such underground sources, federal programs that attempt to deal with underground water pollution are of considerable importance here. Of particular concern both locally and nationally is the pollution of groundwater that is or may be a source of drinking water. This often occurs through development on and discharge or injection of wastes into aquifers (underground formations saturated with water) and, in particular, their "recharge zone"—that part of the land surface above the aquifer that is the principal source of the groundwater flow. 43 For example, three million New Yorkers on Long Island draw their drinking water from only three aquifers, all of which have been described as "seriously contaminated" from industrial and municipal wastes. 44 The federal regulatory program designed to protect groundwater from pollution deals principally with the description and protection of aquifers and the control of waste disposal, by injection and otherwise, in their vicinity. Pollution of groundwater comes from many sources. Direct discharge of liquid wastes is probably the most troublesome. It has been estimated that 17 million septic tanks and cesspools discharge 800 billion gallons of wastewater into the ground each year, despite the wastewater treatment construction grants program under the Clean Water Act. In addition, approximately 200 "deep" and 40,000 "shallow injection" wells for the disposal of commercial and industrial wastes are in operation across the country. 45 Finally, it is estimated that there are 16,000 landfills in which 230 million tons of waste are disposed of annually. 46 Regulatory programs touching upon all or any of these, while directed toward the safeguarding of potable water supplies, will likely dictate how, how intensely, and for what purpose, land may be used. Clearly the location of a potable water supply is a major factor in the development of land. The limitation of development over an aquifer, for whatever reason, will clearly affect development patterns. In the absence of an adequate municipal wastewater treatment facility, the limitation on disposal of commercial and industrial wastes by the use of injection wells will affect the location of industrial and commercial development. The principal source of fresh water in Hawaii is a lens of groundwater. The water is drawn from aquifers associated with that lens by wells. The protection of the groundwater supply from pollution is therefore critical to Hawaii. Such pollutants enter the groundwater in quantity

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principally through two sources: leaching from the surface (from private and public waste disposal sites) and from the injection of wastes in deep and shallow wells for disposal. On Oahu alone, 7 million gallons of raw sewage are discharged daily into the ground into 20,638 cesspools, serving 70,000 people. It is estimated that nearly 40 percent of the cesspools are defective. 47 Kauai has approximately 1,400 cesspools serving 30,000 people, and 2 percent are defective. 48 In Maui County there are approximately 7,200 serving 22,000 people, 8 percent of which are defective. 49 On Hawaii, approximately 24,000 cesspools serve 75,000 people. 50 T H E SAFE DRINKING WATER ACT AND THE INJECTION ISSUE

The EPA has not used what authority it has over groundwater by virtue of the Clean Water Act. 51 Instead, it relies on other legislation such as the Safe Drinking Water Act of 1974. 52 The act creates an underground injection control program to prevent endangerment of underground drinking water sources by setting minimum requirements for state regulation of discharges from deep wells into groundwater. 53 Once the EPA administrator accepts a state-drawn plan, the state must inventory and, within six months, phase out wells discharging hazardous wastes into underground drinking water sources (UDWSs) . 54 Endangerment to a UDWS occurs when an injection " m a y " result in the presence of a contaminant, which may result in a public water system's noncompliance with national primary drinking water standards or otherwise adversely affect "the health of persons."55 The Safe Drinking Water Act permits a state to avoid regulating any aquifer as a UDWS altogether if it is neither a current nor "foreseeably" future source of water. 56 The EPA has set minimum safety requirements for five types of underground injection: 1. industrial and municipal disposal, including sewage sludge and various manufacturing wastes; 2. disposal of oil and gas drilling brines and wells used to pump fluids underground for recovery of oil and gas; 3. wells used to pump liquids below ground in certain minerals mining and energy operations (including geothermal wells); 4. hazardous waste disposal wells; and 5. all other injection wells such as those used to capture storm water runoff or to return air conditioning water underground. 57 The EPA may also designate a UDWS as the sole or principal source of drinking water for that area. Thereafter, "no commitment for federal

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financial assistance may be entered into for any project which the Administrator determines may contaminate such [UDWS] through a recharge zone so as to create a significant hazard to public health." 58 Translation: no federal funds for highways, urban renewal, and the like. Several such UDWSs have been designated since 1976.59 The Hawaii Safe Drinking Water Act of 1976 (and associated public health regulations) set out drinking water quality standards and other requirements applicable to water systems that provide water for human consumption. 60 The act, however, focuses on the regulation of the supplier of water rather than activities that may affect the quality of water supplied for human consumption. For example, a proposed supplier from a new surface source or well is required to identify sources of pollution and their effects on the water source of supply. If the information is inadequate or if it shows potential adverse health consequences, the state director of health may attach conditions to or deny permission to use the new water source.61 In the event that the proposed supplier of water is a county department of water or water supply, it must project future land use that may contaminate the water supply in a plan for development of new water sources. Then, prior to delivery of water from a new or substantially modified water system, a supplier must obtain a certificate from the DOH showing that the system is capable of delivering water that will comply with the state primary drinking water regulations. 62 New federal injection regulations promulgated in 1980 are likely to have considerable impact in Hawaii. Three injection well classes are covered: (1) wells into which hazardous, other municipal, and general industrial wastes have been injected, below formations containing drinking water; (2) geothermal injection wells; and (3) wells that inject wastes as in category 1, but directly into a formation containing drinking water. 63 All the wells in category three must be closed within six months of EPA approval of a state program under the Clean Water Act. The DOH must submit an inventory of storm runoff wells, aquifer recharge and multiple-dwelling cesspools, and septic systems within a year of program approval, and an assessment of "contamination potential" two years later. Single-family systems (wells/cesspools) are exempt. 64 T H E RESOURCE CONSERVATION AND RECOVERY A C T

The Resource Conservation and Recovery Act (RCRA) is directed toward the regulation of land disposal of municipal and hazardous industrial wastes. 65 It does so for solid wastes primarily through the promulgation of regulations affecting new disposal sites. Basically, a solid waste disposal site must not adversely affect groundwater quality.

Clean Water Facilities located above UDWSs must not endanger the UDWS, while if the aquifer is not a UDWS, the groundwater quality required to be maintained is set by the state. Landfills are also prohibited altogether in the recharge zones of UDWSs that are the sole source of drinking water for the area unless no feasible alternative exists and the groundwater will not be endangered. 86 Hazardous waste disposal facilities may not operate without a permit certifying compliance with standards issued by EPA. Such facilities are prohibited in the recharge zones of sole source UDWSs.67 While the DOH has no information that indicates that an existing solid waste disposal site is contaminating drinking water, it presently pursues a program to close open landfills and to locate new landfills away from such sources. It is fortunate that there is so far little hazardous waste produced in the state, since there is apparently no presently adequate site for such disposal available.

Hawaii, Clean Water, and the Future Hawaii and the local EPA regional office agreed in 1981 to concentrate on certain particular aspects of the clean water program as it affects Hawaii. 68 The areas of concentration are groundwater degradation, nonpoint source runoff, point sources, and hazardous wastes, all of which affect land use in the state. Groundwater regulation is expected to be given the highest priority, due to current or future contamination by sewage disposal, salt water intrusion, solid waste disposal, and underground injection. The DOH is expected to: (1) develop a policy and strategy for coordination of existing and developing DOH, Department of Land and Natural Resources and county groundwater protection activities; (2) implement the recommendations of the 208 plans for the state regarding sewage disposal from cesspools and private sewage treatment plants and to implement the construction grants program; (3) implement DOH's water source development review procedures; (4) complete the state solid waste management plans and revise DOH's regulations to meet the requirements to EPA's landfill criteria; and (5) develop a state underground injection control program and seek primacy under the federal underground injection control regulations.69 Nonpoint source runoff is expected to continue to be a significant water quality problem, and it is accorded second priority. However, as it is the counties and local soil and water conservation districts that have the principal responsibility for control of water quality under Hawaii's 208 plan, the DOH is to "continue activities to bring about implementation" of the soil erosion and sedimentation control aspects of the plan. 70 It is recognized that a few remaining uncontrolled raw sewage dis-

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charges together with poor operation of municipal and federal facilities continue to make point-source pollution a problem. Therefore, the DOH is committed to, as highest priority, (1) implementing the construction grants program and (2) improving NPDES enforcement against noncomplying facilities, especially municipal and federal facilities. 71 Although Hawaii does not produce much hazardous waste, the EPA and DOH recognize a need for improved systems to monitor hazardous waste generation, treatment, storage, and disposal. Therefore, the DOH agreed to (1) assist the EPA in developing the federal program for hazardous waste management; (2) identify the areas of responsibility between the state and EPA for the various components of the hazardous waste management program; and (3) develop a program for the DOH's area of responsibility.72 The effects of federally required local land use management and control regulations will clearly continue to have a major effect on the land use regulatory patterns in Hawaii. The location of wastewater treatment plants, the prevention of both point and nonpoint source pollution discharges, and the control of hazardous substance disposal all affect land development decisions both in terms of the location of development and whether to proceed with it—at least in Hawaii—at all. Finally, the increased activity of the U.S. Army Corps of Engineers in regulating coastal development through its dredge and fill rules has the potential to severely restrict much of Hawaii's resort and coastal residential development. That the Corps has the support of the enforcement arm of the federal government in such matters is clear from litigation in Louisiana over what constitutes dredge and fill material, which the Corps can legally regulate. The developer in that case claims that trees, vegetation, and leaf litter are not dredged material and so beyond the Corps to control in regulating wetland development. The federal government claims it is dredge material. The developer lost the first round, and at the close of 1983, a decision was pending in the federal court of appeals. 73 How it is resolved will have a significant impact on the Corps' ability to affect the course of local development in wetland and other coastal areas in Hawaii.

12

Public Lands: The Impact of State and Federal Management and Disposal There is no sense of public outrage over the current scale and forms of government ownership of land. Strong, Land Banking

Federal and state governments and their agencies own a staggering 40 percent of Hawaii's land. 1 While much of this land is in undevelopable park and reserve, nevertheless management policies set forth by federal and state statutes—especially those pertaining to the state's public lands —permit a variety of private residential and commercial uses on these public lands. Moreover, federal land management and disposal policies affect the use of nearby private land in significant ways. Those aspects of public land policy that affect private uses on or near public lands are a potent tool for the management of private lands.

The State: Private Use on Public Lands The state of Hawaii owns nearly a million and a half acres of land, which is one-third of the land area of Hawaii. 2 While much of the land is virtually unusable—mountains, wetlands, and the like—nevertheless a significant percentage is both developed and developable. Aside from the development for residential purposes of Hawaiian Home Lands, which is relatively insignificant from a statewide land use perspective, the state has evolved a detailed set of legislative guidelines that govern what residential and commercial use and disposal can be made of Hawaii's public lands. 3 These are enforced by the Department of Land and Natural Resources (DLNR) through its governing Board of Land and Natural Resources (Land Board). 4 The Land Board has general power to deal with state public land, including its lease and, under certain conditions, disposal for private use. It places all public lands in thirteen classifications, including agricultural, timber, mining, recreational, residential, commercial and

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industrial, hotel-motel-apartment, and resort use. Aside from lands specifically set aside by the governor with the prior approval of the Land Board, all lands must be so classified prior to lease or sale. State statutes express a clear preference for leases, which are restricted to a term not to exceed sixty-five years. Moreover, they are unavailable to persons with delinquent financial obligations to the state. 5 The Land Board imposes additional conditions on commercial leases. Thus, a business lease requires "a development plan which provides for careful placement of complementary enterprises consistent with county zoning requirements" and "wherever possible" the Land Board controls "the landscaping and architecture of the enterprises and protect[s] the public against the creation of nuisances of smoke, soot, irritating odors and gases, and harmful wastes."6 Leases granted by the Department of Planning and Economic Development (DPED) for hotel and resort use must be on land that "possesses the amenities for a successful hotel and resort development" where "the advantages of its placement for such use outweigh those inherent in free public use in its natural state." If adjacent to a beach, waterway, historic site, or landmark, the leased land must provide access "at all times" thereto. 7 Public land for both commercial-industrial and hotel/resort uses may also be sold to private parties, but only if the governor and the legislature first approve. Additionally, when public land is sold for a hotel or resort, development plans must be submitted and the Land Board must find both that it will promote the economic development of the state and that the land sale (as opposed to lease) is "absolutely necessary" for the economic viability of the project. 8 The Land Board applies somewhat different regulations to residential development on public land. It acts very much like a combination developer and county planning agency. It determines the demand for houselots in an area, investigates costs, places the development adjacent to an existing urban center "wherever possible," and subdivides and/or improves in conformity will local zoning and subdivision requirements. To avoid speculation, the Land Board requires the lessee or purchaser of a residential lot to build on it within three years. A purchaser of such a lot may not sell it for ten years unless it has first been offered to the Land Board. 9 The Land Board also may make special provisions for persons who are unable either to qualify for public housing or to afford to buy housing. Included are persons whose land has been recently condemned but whose compensation award is insufficient to purchase other housing and "low-rent housing" residents or prospective residents who might otherwise be discouraged from increasing their income for fear of

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becoming ineligible for subsidized housing. For this class of applicants, the Land Board may subdivide and lease lots of between 5,000 and 15,000 square feet and lease them for an initial fifty-five-year term for the construction of a house. A prospective lessee under this program must have gross annual family income of less than $20,000 and no other residential land holdings. The lessee is entitled to purchase the lot at its fair market value after ten years, provided a house is built. 10 This scheme is subject to further Land Board regulation if any of the developed land is located in the conservation district as determined by the Land Use Commission. The Land Board must then regulate private development in accordance with statutory authority set out in the Land Use Law and its Regulation no. 4, all as discussed in chapter 2.11

Federal Lands: The Use and Disposal of a Scarce Commodity The United States government once owned 79 percent of the country's land. It still owns a whopping 761 million acres, or approximately onethird of the total land area. 12 Against this backdrop, the amount of federal lands in Hawaii is small indeed: approximately 300,000 out of 4 million acres, or just over 7 percent. 13 Much of that land, however, is in prime scenic or development locations, such as Barbers Point, Pearl Harbor, Kaena Point, Fort DeRussy, and Bellows Beach on Oahu. Much of it is also controlled by the military. The use and disposal of federal land and its effect on both public and private land use has been the subject of much comment. 14 It is not the purpose of this chapter to deal extensively with the vast subject of federal public lands policy, however, but with selected effects of federal land use decisions on land development in Hawaii. 15 Much of the land that was eventually to become the vast majority of federal land called "the public domain" was acquired through fortuitous purchases. Alaska, the Louisiana Purchase, and the Mexican Purchase—totalling 54 percent of the land area of the United States—come most readily to mind. 16 The land was for the most part acquired during a decidedly expansionist period in U.S. history. The major thrust of legislation and other programs governing its use was to put as much public land as possible rapidly and expeditiously into private lands. The wholesale giveaways that characterized the first half of the eighteenth century and much of the nineteenth did not abate until the first part of the twentieth century with the setting up of a national park system, followed by national forests, reserves, and a host of other federal land classifications designed to hold and conserve, rather than dispose of, public land.

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A concomitant development was the reemergence of the public trust doctrine. Various state governments were directed by the courts to hold certain public lands in trust for "the people"—variously defined. The result was not only a slow-down but a change in the manner of disposition. Leasing and other less-than-fee disposals took the place of the outright transfers of ownership that were so popular in the nation's first hundred and fifty years.17 As concerns Hawaii, the current vogue does not favor disposal of public lands but rather their retention. Witness the resolution of the decade-long struggle over the use of federal lands in Alaska, where a hundred million acres—an area larger than the state of California—has been more or less permanently placed in a series of conservation zones to the discomfiture of the state of Alaska and many of its people. 18 The primary thrust of the discussion that follows is the authority of the federal government to use and dispose of so-called "ceded" lands—those nearly two million acres relinquished to the federal government by the Republic of Hawaii when it obtained territorial status in 1898.19 CEDED L A N D S IN H A W A I I

The federal government's potential for affecting land use in Hawaii through disposal of land it now holds is considerable. A substantial amount of that land in critical locations must be returned to the state at no cost if it is declared "surplus."20 This is in part because federal public lands in Hawaii have never been part of the public domain from which so many grants to private interests have come over the past two centuries. Congress administers public domain lands primarily by virtue of the U.S. Constitution, Article IV, section 3, clause 2, which grants it power to dispose of and make all needful rules and regulations respecting territory or property belonging to the United States.21 Although Hawaii had achieved territorial status toward the end of the period when federal lands were being given away, it was over half a century before it became a state. 22 Partly as a consequence of an additional fiftyyear period between U.S. settlement and annexation and partly because of the ending of the public domain acquisition period in U.S. history, Hawaii's land never did become part of the public domain. Thus, while the resolution of annexation declared the Republic's relinquishment of sovereignty and the cession and transfer to the United States "the absolute fee and ownership of all public, government, or Crown lands, public holdings" and other public property "of every kind and description belonging to the government of the Hawaiian Islands," it also expressly declared such lands to be other than in the public domain. 23 Finally, the resolution specified that all but armed forces uses must be for the benefit of the inhabitants of the Hawaiian Islands:

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[t]hat the existing land laws of the United States relative to public lands shall not apply to such land in the Hawaiian Islands, but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.24 It is clear from the legislative history of the Admission Act of 1959 by which Hawaii become a state that Congress meant to perpetuate this exceptional status.25 First, Hawaii was to be the successor in title to the lands and properties held by the territory prior to admission. Second, the federal government turned over to the new state substantial land it owned—with the notable exception of the ceded lands.28 Third, the act set up a procedure by which these ceded lands would be returned to the state as well: (e) Within five years from the date Hawaii is admitted into the Union, each Federal agency having control over any land or property that is retained by the United States pursuant to subsections [ceded lands] shall report to the President the facts regarding its continued need for such land or property, and if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii. (g) As used in this Act, the term "lands and other properties" includes public lands and other public property, and the term "public lands and other public property" means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired in exchange for lands or properties so ceded.27 Thus, for purposes of disposal, the critical section of the Admission Act is the above-quoted subsection 5(e). The necessity for an extension of the five-year deadline soon became obvious. Between 1960 and 1964, the federal government returned a measly six hundred acres.28 The slow pace of the return led directly to the enactment of the Ceded Lands Act of 1963, the history of which clearly sets forth the intent of Congress to promptly return all surplus ceded lands to the state as rapidly as possible.29 After tracing the various laws by which ceded lands were acquired by the United States, the act states that whenever such lands are "determined to be surplus property by the Administrator of General Services (hereinafter referred to as the 'Administrator') with the concurrence of the head of the department or agency exercising administration or con-

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trol over such lands and property, they shall be conveyed to the State of Hawaii by the Administrator subject to the provisions of this Act."30 The lands are to be conveyed to the state free of charge, unless improved with buildings and structures, in which case the improvements must be paid for or relocated: Such lands and property shall be conveyed without monetary consideration, but subject to such other terms and conditions as the Administrator may prescribe: Provided, That, as a condition precedent to the conveyance of such lands, the Administrator shall require payment by the State of Hawaii of the estimated fair market value, as determined by the Administrator, of any buildings, structures, and other improvements erected and made on such lands after they were set aside.31

If (1) the state refuses to pay for the improvements and (2) the administrator determines that relocation and removal are not feasible, then the obligation to transfer the land to the state ceases, and the value of the land only must be turned over to the state upon subsequent disposal.32 Finally, the lands and proceeds therefrom are to be held in "public trust": "Any lands, property, improvements, and proceeds conveyed or paid to the State of Hawaii under section 1 of this Act shall be considered a part of public trust . . . and shall be subject to the terms and conditions of that trust."33 The present state of ceded lands in Hawaii raises at least two critical questions: (1) At what point are such lands "surplus" so that they must be transferred to the state? and (2) Once such transfer takes place, what may be done with them? Ceded Lands: At What Point Surplus? Both the Admission Act and the 1963 Ceded Lands Act make clear that whoever (the president or the General Services administrator) eventually makes the transfer, the lands must first be declared surplus.34 Moreover, such declaration of surplus must be agreed to by whichever agency of the federal government administers or controls the land.35 Unfortunately, there is no express requirement in either act that there be a regular review of agency needs leading to a declaration of "surplus." Indeed, language requiring such a review every five years was apparently rejected by Congress during the course of hearings on the Ceded Lands Act.38 Shortly after Hawaii achieved statehood, however, the Federal Office of Management and Budget—to whom the president delegated his

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authority to declare surplus ceded lands—did issue guidelines, which provide that a parcel of ceded land would not be retained when: 1. It is not being used by the controlling agency and there are no firm plans for future use; 2. The costs of operation and maintenance are substantially higher than for other suitable properties of equal or less value which are, or can be made, available to the Federal Government without direct cost; 3. It is being leased to private individuals or enterprises and there are no firm plans for future Federal use; or 4. It is being used by the Government to produce goods or services which are available from private enterprise, except when it is demonstrated clearly in each instance that it is not in the public interest to obtain such requirements from private enterprise. 37 These are, however, guidelines only, and there is apparently some confusion over whether the federal government still adheres to them, especially after the 1963 ceded lands amendment to the Admission Act.38 Hawaii has so far been unsuccessful in its attempt to obtain a favorable court decision setting out conditions under which the General Services administrator must declare ceded lands to be surplus. The U.S. Supreme Court dismissed the only suit that has so far reached it on this issue on procedural grounds: "We have concluded that this is a suit against the United States and, absent its consent, cannot be maintained by the State."39 A later attempt to obtain that consent failed. 40 However, pursuant to executive orders, the U.S. Department of Defense has taken great pains to inventory and analyze the ceded lands under its control. 41 The result was a recommendation that nearly three thousand acres of land be released to the state. 42 Unfortunately, the results have not yet matched expectations since the filing of the report. A classic example of the reluctance of the federal government to release ceded lands to the state is Bellows Air Force Base, located on two and a half miles of sand beach on the southeast coast of Oahu. Of the 1,495 acres that comprise the base, 1,457 are ceded lands. Aside from certain military transmitter facilities—which may soon be consolidated with facilities off the base—the major if not sole use for Bellows appears to be a semiannual amphibious training exercise utilizing approximately 600 acres.43 Other facilities include beach cottages, the use of which can hardly be described as "mission-related"—the usual test for the need of facilities—an armory, and a nine-vehicle maintenance facility.44 It is worth observing in fairness to the air force that it opens Bel-

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lows Beach to the general public on weekends and holidays and it released 77 acres of ceded land at the Waimanalo end of the base in 1974.45 Nevertheless, the federal government has since consistently turned aside state requests to either release or lease any of the base. 48

The Ceded Lands and Public Trust The Admission Act broadened considerably the "public trust" purposes for which ceded lands, once acquired by the state, could be used. It stipulated that lands granted to the state of Hawaii together with proceeds from the sale or other disposition of such lands shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provisions of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States. The schools and other educational institutions supported, in whole or in part, out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college, or university.47

The state's Department of Land and Natural Resources (DLNR) administers the ceded lands that are eventually released to the state. 48 DLNR has recently come under attack for its management and accounting for land and resources under its control generally, and ceded lands in particular. It appears that funds generated by use or sale of formerly ceded lands sometimes ended up in (or were transferred to) the state's general fund rather than kept in a special public trust fund. 49 Partially as a result of the ensuing brouhaha, bills were introduced in the 1980 Hawaiian legislative session by native Hawaiian legislators to remedy these perceived deficiencies. DLNR has also developed a new land inventory system that should aid accounting for ceded lands-related transactions. 50 The stakes in such funds are high. Native Hawaiian groups successfully persuaded the 1978 Constitutional Convention to create the Office of Hawaiian Affairs (OHA), which is run by a board elected by native

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Hawaiians. Presently 20 percent of all income from ceded lands is being turned over to OHA pursuant to legislation based on that constitutional provision. OHA's claim to profit or revenues from potential projects on ceded lands—upon which, for example, Aloha Tower and its projected multimillion dollar redevelopment at Honolulu Harbor sits—may have far-reaching effects not only on native Hawaiians but also on the success of such development projects. Needless to say, any suggestion that the ceded lands should redound solely to the benefit of native Hawaiians would be in flat contradiction to the language in section 5(8) of the Statehood Act, as quoted above.

Federal Lands and State/Local Land Use Controls Of potentially equal significance in Hawaii is the current federal policy of disposing of so-called surplus property aside from ceded lands. Within limits, the federal government may dispose of such property any way it chooses. It appears that disposal is part of an overall federal program to raise revenue. One surplus property, which at least some U.S. senators find ripe for disposal, is the Fort DeRussy site in Waikiki. Surrounded on three sides by high-rise condominium and hotel developments, with unobstructed ocean on the fourth side, the multiacre site is virtually free of development. It is also the last significant beachfront open space in Waikiki. While the federal government has expressed interest in selling it for development, the city and state administrations have declared their wishes to retain it as open space for an eventual public park. Indeed, the mayor of Honolulu has threatened to zone it for low-density development in order to frustrate federal plans. 51 Unfortunately, recent federal court decisions raise doubts about the power of Honolulu to regulate land use on federal land in the face of a contrary federal policy. In 1966 the U.S. Supreme Court held a state statute providing for the rounding up of stray burrows on federal land to be unenforceable in view of a federal statute managing them and prohibiting such action, on the ground that where Congress passes legislation pertaining to federal property, state law "must recede."52 Based on that decision, a federal appeals court in California—which has federal jurisdiction over Hawaii—decided in 1979 that Ventura County's zoning laws prohibiting oil exploration without a permit were inapplicable to private oil companies with federal permission to explore and drill on federal land: "the federal government has authorized a specific use of federal lands, and Ventura cannot prohibit that use, either temporarily or permanently, in an attempt to substitute its judgment for that of Congress."53 Honolulu's land use controls may therefore be diffi-

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cult to apply to properties such as Fort DeRussy, so long as the federal government retains any rights in that land. In conclusion, public lands, their use and misuse, will continue to affect land development in Hawaii for some years. The subject of ceded lands, their release and development, was a major item on the agenda of the Native Hawaiian Study Commission, which was reconstituted in 1981, though its recommendations were advisory only.54 Measured against recent experience and current trends, the future does not bode particularly well for the return to Hawaii of its ceded lands. However current, the concern over ceded lands is but a part of the larger issue of use and management of public lands, which can proceed regardless of local land use controls, whether or not a particular federal or state administration chooses to subject itself to such as local zoning. The agencies who oversee this use and development are largely their own masters, and the result for land use in Hawaii is not always predictable, and it may be more prudent to raise the need for a determination of consistency of such development with Hawaii's federally approved coastal zone plan as required under both federal and state coastal zone management acts (see chap. 7).

Regulating Paradise: Is Land Use a Right or a PrivilegeP

The totality of land regulation in Hawaii raises an increasingly common philosophical issue: is the use of land in Hawaii a right or a privilege? The issue is unique neither to Hawaii nor any other state. The United States has been blessed with a surfeit of undeveloped land from its inception, and its history is virtually a history of land acquisition and development, throughout the eighteenth, nineteenth and twentieth centuries. Indeed, the plentiful supply of undeveloped land was a critical factor in the population and settlement of the nation. 1 It has been over a hundred years, however, since Frederick Jackson Thrner implicitly raised the question: What happens when we run out of new lands to settle? 2 As many parts of the United States became highly developed (urbanized) and uses of land overlapped, the question of competing land uses became critical. Thus, while controls had always been some part of our land philosophy, they became increasingly prevalent in the mid-twentieth century. 3 Disputes over whether land use is a right or a privilege characterize much of the thought-provoking literature of the past decade. Some commentators preferred to see the development of land continue as a right of ownership. 4 Others expressed a desire to move toward other Anglo-American systems of land development where, if the right to develop had not yet metamorphosed into a privilege dispensed by government, it at least was subject to special scrutiny as "affected with a public interest" if not paid for outright as in a "windfall" to compensate those whose development rights were "wiped out" by public land use control decisions. 5 In Hawaii, Western land ownership and development patterns (as opposed to a virtually Norman-feudal tenure system prevailing under Kamehameha I as late as the early nineteenth century where the king was the ultimate owner of all land and his nobles or ali'i "held o f him —and their loyal followers of them) commenced during the latter half

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of the nineteenth and early part of the twentieth centuries and evolved into the present pattern of urban land development in the state only in the mid-twentieth century.6 The plethora of land use regulations at every level of government surveyed in the foregoing chapters, however, leads inescapably to the conclusion that Hawaii is, willy-nilly, fast embracing a "privilege" rather than a "right" theory of land development. It takes but a brief comparison of Hawaii with another islandstate with scarce land resources and rampant urbanization—England— to demonstrate the speed with which such a changeover occurs. The completion of several land use studies coupled with the physical destruction and turmoil resulting from World War II led England to adopt in 1947 a sweeping land use planning law that abolished the private right to develop land.7 Extending to every acre of the British Isles, the law required a landowner to seek local government permission to undertake any form of land development, broadly defined as the carrying out of building, engineering, mining, or other operation in, on, over, or under land or the making of any material change in the use of any buildings or land. 8 Although the same law provided for the drawing up of both general and area-specific development plans, which would characterize certain lands as appropriate for development, even owners of such land had to seek permission from local government before commencing development. Moreover, a local government could legally deny an application for development permission even though its own development plans showed the land to be in a development category.9 While the same law purported to nationalize or condemn existing development rights by establishing a multimillion dollar fund against which landowners denied development permission could (for a time) claim, no one in England doubts the law would be valid without such "just" compensation.10 Moreover, the British tax laws levy a development tax on new, permitted development, which, since 1947, has ranged from 30 percent to 100 percent of the value of the development "increment" upon land value.11 The parallels with Hawaii are, up to a point, striking. Though spared the urban destruction of World War II, Hawaii also developed its state land use law after a series of studies and reports, which law also covers every acre of land in Hawaii. Moreover, each of Hawaii's four counties has local laws that do the same, and all developable land falls in the jurisdiction of one of these counties. Therefore, all developable land is subject at least to these two levels—state and local—of control. While there are still areas where the owner of land appropriately classified under the state law and zoned under the county codes for development may build without further ado, they are diminishing rapidly with the

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overlay of various special permit requirements for such as shoreland management, historic preservation, and design-aesthetics. Unlike England, however, Hawaii has not formally either abolished or nationalized the right to develop land nor has it yet decided whether land development is a private right, subject to regulation for health, safety, and welfare of the people at large, or a privilege, for which a private landowner must seek permission and/or pay. How Hawaii deals with the issues of plans as laws, vested rights, and its plethora of land use controls, against a backdrop of federal and federally mandated land use controls, may well decide the question in the next decade.

The Plan as Law and the Proliferation of Plans The linking of plans to development control of land is not, of course, restricted to England. Aside from early standard zoning enabling statutory provisions requiring that zoning be in accordance with a comprehensive plan, fourteen states now require that land use regulations be "consistent with" or "conform to" local land use plans. 12 Some courts have treated such consistency or conformance requirements so stringently that failure of a city to bring its entire zoning scheme into conformance with a new comprehensive plan voids the zoning law. 13 These decisions have moved one expert to comment that zoning ordinances are fast becoming mere administrative arms of the comprehensive planning process.14 While Hawaii state courts have not gone nearly so far, there is no doubt that, on several levels, the plan indeed has the force of law in Hawaii. Moreover, there are a great many land use plans, most of which are linked not only to each other but also to state land regulatory agencies and county ordinances, such as those dealing with zoning and subdivision control. This is particularly relevant in the relationship between the state plan—Act 100—and the county plans and land regulation ordinances. Counties are required to have their general and, if any, development plans conform to Act 100. This is so even though that conformance is easier to accomplish after the 1984 amendment to Act 100's definition of conformance (discussed in chap. 3). This, of course, has a more direct effect on land use than is apparent on the face of the requirement, since in at least three of Hawaii's four counties, local land use regulations such as zoning and subdivision codes must conform to, or be consistent with, these county plans. Therefore, by requiring some measure of county plan conformance to the goals, policies, objectives, and priority guidelines of the State Plan, the state, through Act 100, has essentially

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made at least prospective land use regulations and changes (rezonings, subdivision approvals) subject to at least some of its overall themes, goals, objectives, and priority guidelines. When coupled with the Act 100 requirements that state land use agencies like the Land Use Commission (boundary amendments) and Board of Land and Natural Resources (land use in the conservation district) also conform to Act 100, then, to the extent that Act 100's provisions provide direction for land use decision making, arguably all the public regulatory and management aspects of land use in Hawaii are guided by the state through Act 100. This is a two-edged sword, however. Act 100 is very general, as it should be. Its land use provisions are more expressions of policy than specific directives for use in particular situations. For specifics, Act 100 directs attention to the twelve functional plans. This raises an interesting question as to purpose and content. A cursory reading of the twelve functional plans discloses more specificity than the State Plan but not enough to provide a basis for land use decision making at the county level. Even to the extent that the functional plans are principally refinements to and extensions of Act 100's substantive provisions there is not the level of detail contemplated at most county development plan levels to guide land use decision making in individual cases. But according to Act 100, these plans were to be determined to be in conformance to Act 100 by January 1982. Who was to make the determination is not clear. Once this conformance decision is reached, it is arguable that the state has converted the county plans into land use plans for the state. Once the state determines county plans to be in conformance with Act 100, it will be difficult for either the Land Use Commission or the Land Board to justify making decisions contrary to their provisions. This consistency debate is but one aspect of a large issue that increasingly divides state and county governments: home rule. At bottom, the question of who ultimately controls the use of land in Hawaii depends upon whether the Hawaii constitution's home rule provisions are broadly or narrowly read. As the foregoing analysis suggests, the counties would prefer that those provisions be read broadly.15 However, this might not be entirely to the counties' advantage. In 1978, the U.S. Supreme Court stripped local governments of their traditional immunity from prosecution under national antitrust laws when they conspire to act in "restraint of trade" in various of their governmental activities like awarding exclusive franchises (stadium concessions, garbage collection contracts, and the like) and zoning land for commercial purposes that favor one landowner/developer over others—or downtown merchants over proposed regional shopping center developers.1® The princi-

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pal exception: when local government was acting pursuant to a clearly articulated state policy, required and supervised by the state. The courts then decided in 1982 that a local government's home rule status—like that of Hawaii's four counties—was not sufficiently statelike to extend state immunity to home-rule local governments. 17 As a result, local governments throughout the United States are increasingly put to the considerable expense of defending and, if lost, paying treble the amount of damages proved in complicated lawsuits involving claims of tens of millions of dollars, a large percentage of which result from their land use decision making. The irony for Hawaii's counties is that the more successfully they are able to free their land use decision making from the state, the less available is the defense that they are merely enforcing required and supervised state land use policies. Finally, there is the relationship of local plans to traditional local land use control ordinances. Honolulu will probably be the first county to deal with the effect of charter-mandated detailed development plans on land use regulations. Honolulu's charter forbids even the initiation of zoning or subdivision amendments that do not conform to the new county development plans. There has already been one brouhaha over whether height limits expressed as "guidelines" in those plans have a different effect from such limits expressed as "standards": does a proposed 100-foot building fail the conformance test if the applicable development plan contains a guideline of 50 feet rather than a standard of 50 feet? Yes, probably so. However, what about a guideline (rather than a standard) of 90 feet? Maybe not—but does the extra 10 feet make any real difference? In any event, there is some question whether the Hawaii Supreme Court is willing to apply any plan so stringently, having in 1981 held a detailed plan ineffective as against a conflicting zoning ordinance because the ordinance adopting it "did not state that the subject therein was zoning."18 Of course, few such ordinances do, and the proper reference is to the charter requirements for the relationship of plans to zoning. This bodes ill as well for efforts to apply any height limit, whether guide or standard, to a building that needs no rezoning to proceed. While courts in other jurisdictions have required existing zoning ordinances to be brought into conformity with new plans (even without specific statutory or charter direction), the Hawaii Supreme Court has never done so. Moreover, currently a 100-foot building could conceivably be built even in a zoning district with a 50-foot limit—with a special or conditional use permit or a variance. These devices—all of which have been used at one time or another to grant substantial relief from bulk zoning requirements like height limitations—are nowhere re-

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quired to conform to development plans in the Honolulu charter. The charter limits itself to zoning amendments and subdivision changes. Special uses, conditional uses, and variances are neither. Indeed, the permitting of development in special design districts, historic, cultural, and scenic districts, and planned development districts is an administrative action in Honolulu, not a zoning amendment. Therefore effecting district height "relief" by pointing to lack of conformance with a development plan guideline or standard is likely to be fruitless. Vested Rights and Development Rights If the right to develop land that has been appropriately zoned and planned for development exists at all, then it must be assumed that a development once legally commenced is entitled to completion—that is, the owner's development right has vested. The question is, in this age (and state) of multiple permits, how far along the development continuum must a landowner progress before he has obtained vested rights? The question is usually a judicial one in the absence of state statutes permitting landowners and local governments to "freeze" zoning and other laws for a period of years during which, presumably, a legally permissible development is both commenced and completed.19 The vesting of development rights has come before the Hawaii Supreme Court but five times in the past decade, most recently in the Nukolii case.20 Whatever the law was before, the Nukolii case puts Hawaii squarely in the camp of states like California, which require a developer to be very far along indeed in the development process to be safe from a change in law that makes it illegal for him to proceed.21 The landowners in the Nukolii case had obtained both state and local land use reclassification to zones that permitted resort development. While they were in the process of obtaining other necessary development permits—primarily shoreland management under local coastal zone regulations—citizen opposition culminated in a referendum petition drive under Kauai's county charter, which permits rezoning of property by referendum provided vested rights are not affected.22 The petition requiring the referendum on the county zoning was certified about three months before the permits were granted and about six months before building permits (for condominiums) were issued. Three months after the building permits were issued and construction began —and ten months after the petition was certified—the referendum overwhelmingly overturned the landowners' resort zoning.23 Did the landowners have a vested right to proceed? Not according to the Hawaii Supreme Court. Reversing the court

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below, the state Supreme Court held that the certification of a referendum petition automatically creates one more "discretionary" permit (beyond the shoreland permit the developer-landowner already had). Without securing that last discretionary permit, a landowner would proceed entirely at his own risk and no rights to develop would vest.24 While originally a victory for direct citizen participation in land use decisions (the developer won a second referendum and has asked for his building permits back), the decision is troublesome for landowners' rights. It is difficult to see how a landowner can rely on any land use development permit short of a building permit where referenda of the Kauai sort are certified, even though certification requires only a percentage of the signatures needed to win a referendum. During the interim between certification and referendum—almost a year in Nukolii—many laws pertaining to a particular development may change, so that even if a landowner wins the referendum and retains his zoning, new and different permits may be necessary before a development can commence. 25 This actually occurred in California where new shoreland development permits were added to that state's already long list of land development permits just before a landowner obtained his final building permits but after he had begun rough-grading and had expended millions of dollars in (legal) reliance on his permits thus far. All for naught: the California courts held he had no vested rights to proceed until that final discretionary permit—not necessary when he began his land development permit applications—was obtained. 26 This last result led California to adopt a developers' agreement law, a course of action that may well presage a similar attempt in Hawaii. 27 Essentially, such statutes permit but don't require local governments to agree with a landowner that all (or certain) of the local land use regulations applicable to a particular parcel will remain as they are (or as modified by the local government) for, say, five years. Thus, any subsequently enacted land use regulation of the kind frozen by the agreement will be inapplicable to the subject property, even if passed by a later— and different—city council. In return, a landowner often agrees to dedicate land or easements, or to build extra infrastructure or other improvements, beyond what a local government could otherwise require as a condition of development permission. Although such an agreement thus binds future legislative bodies in a way normally impermissible under standard local government law, courts in both the United States and England have generally approved these kinds of agreements provided what is bargained away is not too extensive.28 How Hawaii ultimately resolves the issue of vested rights may determine the extent to which anything remains of development rights even

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in properly classified lands. Hawaii may be well along the path to accepting land development as a privilege only, unless some method for fixing vested rights pending final development permission is found— especially in a multipermit state such as Hawaii.

Land Development In a Multipermit State: The Permit Explosion The vesting of development rights is only the most critical of issues arising from the panoply of federal, state, and local permits, permissions, and reviews necessary to develop land in Hawaii. According to one study, at least thirty sets of development regulations may apply to a modest shoreland development, even if it is properly classified under the state land use law and zoned for development under county zoning. 29 The time and effort necessary to obtain development permission is enormous, stifling development both good and bad. Attempts at simplification of the process have been both sporadic and ineffective. 30 While the problem is not uniquely Hawaiian, Hawaii does appear to have one of the country's worst cases of "permit explosion." 31 The problem needs to be approached from at least two perspectives: (1) guarantee of development rights so that the rules are not changed in midstream and (2) development permission simplification. The first perspective has been discussed above. An agreement between landowner and county would do much to add certainty to the development process. However, some mechanism whereby the state is brought into the process is worth considering. It will profit a landowner very little if Honolulu guarantees that its zoning, subdivision, special management area (SMA), development plans, and other land development regulations will not change for five years with respect to a given parcel, should the state Land Use Commission reclassify the land from urban to conservation, or should the Board of Land and Natural Resources eliminate altogether what little subsidiary development it does permit on urban-adjacent conservation land by means of a rule change. Simplifying the permit process is a more difficult problem, one that may initially be approachable by one governmental level at a time. A "master permit" might well serve to unite zoning, subdivision, and SMA permits, for example. At the state level, it is worth considering whether, from a permit simplification perspective, drastically reducing or changing the role of the Land Use Commission so that it only considers petitions in which the state has a vital land use interest, would be helpful. 32 For some projects, especially those jointly commenced by both public

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and private sector, negotiated development should perhaps replace existing planning and land use controls altogether. Whatever is ultimately done, no permit simplification, coordination, or streamlining will be effective unless the multitude of plans under which land use labors is also both coordinated and simplified. The international author and land expert Sir Desmond Heap, for a time visiting professor of both law and planning at the University of Hawaii, took Hawaii to task for its many plans in 1981.33 As previously noted, Hawaii's plans at both the state and local level have the force of law and often supersede inconsistent land use regulation of the more traditional sort (such as zoning and subdivision codes). It is therefore critical that any attempt at simplifying Hawaii's land use regulatory process specifically include state and local plans.

State and Local Land Use Policy in a Federal System There are some land use regulations about which neither the state nor Hawaii's four counties can do very much. These are the land use management and control programs imposed as a result of participation in federal programs. Either required by federal law or promulgated in response to a federal grant program, these "federalized" state and local land use controls touch virtually every aspect of state and local land use regulation in Hawaii. 34 County zoning and subdivision regulations implement both the federal coastal zone management and flood disaster protection acts both in and out of the immediate shoreline areas. State laws relating to critical areas, especially those enforced by the Board of Land and Natural Resources, are shaped in part in response to the Coastal Zone Management Act. Indeed, a separate state coastal zone statute is drawn to meet that federal statute's program and implementation requirements. Location of wells, wastewater treatment plants, and accompanying development are guided by the Clean Water Act. So is the granting of dredge and fill permits from the U.S. Army Corps of Engineers, which are necessary for any significant shoreland development. Transportation links and new stationary sources of pollution must meet Clean Air Act pollutant standards and/or fall into air quality zones that are neither too clean nor too dirty. Any land use that involves the federal government is subject to an environmental impact analysis under the National Environmental Policy Act. While there is some flexibility in drafting these land use controls, the state has little choice but to adopt something responsive to standards and criteria in these federal laws. Well-intentioned as they are, they add

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yet another series of land use regulations that restrict the use of land, a series of regulations that is difficult to coordinate, much less prune or delete. Of equal concern is the use of federally held land in Hawaii, whether owned outright or, as in the case of ceded lands, held conditionally. State and local land use controls do not extend to federal lands without the permission of the federal government. Indeed, one of the advantages of state participation in the federal coastal zone management program was the review afforded state and local officials of federal actions affecting the coastal zone that might be inconsistent with a coastal zone management program. With large and critical areas owned by the federal government, how the federal government uses these lands critically affects land use at their periphery. Indeed, federal land use can so change the character of an area that inconsistent state and local controls on nearby land might be rendered subject to attack in court. Of equal significance is the disposal of federal lands. A spate of proposals in the early 1980s to sell off "surplus" federal lands to help ease the national budget deficit has resulted in considerable adverse comment and concern both nationally and locally.35 While the federal government is obligated to return surplus ceded lands to the state, it is under no obligation to give back lands it purchased or condemned. Disposing of these last categories of land to private parties for development would in many instances run directly contrary to state and local land use policy, which, to the extent embodied in land use regulations like Honolulu's development plans, zoning, and subdivision codes and the state's land use law and state plan, would prevent much of the development that would make the land desirable to the private sector in the first place. Some of the more strict state and county regulatory policies might be a bit strained legally if enforced against private landowners in an area as highly and densely developed as Waikiki, but it hardly follows that the only legally defensible use for such property is a parade of intensely developed high-rise projects. The federal government would do better to sell its surplus lands to the state and to Hawaii's counties, and at a price reflecting something much less than their maximum economic development potential.

Housing, Development, and Agriculture: A Need for Reconciliation The conflict between assuring an adequate supply of housing and land use controls directed toward preserving the environment and agricultural land is both real and, if each "virtue" is pushed to its furthest con-

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elusion, irreconcilable. 38 Land use expert and critic Richard Babcock has observed: It is not that the poor don't care about environment; it is just that environment to them does not mean keeping the fishing holes free of beer cans or of saving Lake Michigan "for all of us," but of finding decent shelter reasonably accessible to a job. . . . [In Hawaii] [t]hese "preserve" and "improve" restrictions have contributed to one of the nation's most appalling shortages of housing and a substantial increase in the cost of what housing there is.37

Another commentator has put it more pungently: Stop growing? But growing is the secret of our success. We have mass affluence, to the extent we have it, not because we took from the rich and gave to the poor but because we became—we grew—so much richer that even most of the poor live tolerably. They still get the short end of the stick, but the stick is so long now that one can get at least a fingerhold on that end. . . . [F]or the nation as a whole, for the economy, the conservationist's dichotomy remains, and he has not faced up to it: if we do not stop expanding, we ruin the environment; if we do, we condemn the lower middle classes to their present fate. 38

The foregoing sections have already commented on the effect of many of Hawaii's innovative land use controls on the supply of land for, the process of approval of, and the regulations governing the development of land. The conclusion is inescapable that the preservation of values upon which many of these controls are based (and, indeed, reflected in many of the themes, goals, objectives, and policy guidelines contained in the State Plan) adversely affects the goals (also set out in Act 100) relating to providing decent housing for all of Hawaii's people. This is not to imply that either the state or the counties have ignored the problem. Hawaii participates in a variety of programs aimed at alleviating what is an increasing shortfall in affordable housing, even providing for a limited "override" of local land use controls for highdensity low- and moderate-income housing projects. While one might question the wisdom of such a provision from the perspective of sound land use planning (a high-rise is a high-rise regardless of who lives in it, and its appropriateness at any given location from a land use policy perspective should depend upon factors other than who lives in it), it certainly has the potential of moderately expanding the construction of low- and moderate-income housing. But there is also the question of agriculture's future in Hawaii. Preserving agricultural land is by itself a worthwhile goal not only from a

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statewide perspective; it is important at a national and international level. What is not so clear is just how much land should be preserved and where. Clearly, undeveloped land is needed for housing. Just as clearly, some of that land—especially around new communities such as Mililani in Central Oahu—may well be prime agricultural land. Yet the state Land Use Commission is directed to encourage urban development (for which it must provide in decade-long increments) in and around existing urban centers. Given the infrastructure investment (roads, sewers, water, police/fire protection, schools, parks), this is a sensible goal but one that may on occasion conflict with policies on agricultural preservation. In this connection, renewed interest in land banking should be applauded as a useful tool in preserving agricultural land and other open space as well as potential sites for housing. 39 By publicly acquiring land (or development rights in land) the state as owner can decide within the limits of public policy precisely what prime agricultural land should be preserved, regardless of current economic need, and precisely what land should be used for low- and moderate-income housing. It could even write off the land costs for such housing, thereby substantially reducing the cost of housing to the first purchaser and, through restrictive covenants on the land, subsequent purchasers. Indeed, it is only through selective state intervention through purchase of land and rights in land that there is long-term hope of providing for both the housing and agricultural needs of the state.

Regulating Paradise: For Whom? In sum, it is possible to bring most development to a screeching halt in Hawaii, given the plethora of land use plans and controls applicable to even the most modest of land use proposals. This would unquestionably result in the preservation of most if not all open space, beaches, agricultural land, historic and cultural sites, views, and other natural and built amenities in the state. It would also result in the exacerbation of the state's housing problem, a major shift in the state's economy, and a considerable reordering of state and local government priorities—for openers. Such a far-reaching set of decisions will affect every aspect of life in Hawaii and therefore should be made openly, intentionally, and consciously by the entire Hawaiian community and not accidentally, reactively, and covertly by a particular segment of the broad-based society that makes up today's Hawaii. Conserve and preserve we should and must, or we lose what is uniquely Hawaiian in any and every sense. But provide we must for that use and development of land required for a

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sophisticated Pacific island state in the last quarter of the twentieth century. Paradise once lost is not easily regained, but paradise preserved, museumlike, by relegating it to the past for the benefit of less than all of its people is neither likely nor laudable. Better we plan for the development we collectively decide we need and preserve what we collectively decide we want, and agree at the outset that absolute land preservation and absolute land development will always conflict absolutely. Only by a judicious mix of the two will we make a go of regulating this island paradise.

Notes

Chapter 1

Introduction

1. Jon J. Chinen, "Original Land Titles in Hawaii." Jon J. Chinen, The Great Mahele, pp. 3-6. 2. Robert H. Horwitz et al., Public Land Policy in Hawaii: An Historical Analysis, report no. 5, Legislative Reference Bureau. 3. Ralph S. Kuykendall, The Hawaiian Kingdom, vol. 1, 287-291; Jon J. Chinen, Original Land Titles in Hawaii. 4. Horwitz et al., Public Land Policy in Hawaii. 5. Tom Dinell, "Land Use Zoning in a Developing State," 2 Third World Planning Review 195 (1980): 195-197. 6. Ibid., 197; and Fred R Bosselman and David L. Callies, The Quiet Revolution in Land Use Control. 7. Horwitz et al., Public Land Policy in Hawaii. 8. Ibid. 9. Bosselman and Callies, Quiet Revolution, 6. 10. Dinell, "Land Use Zoning," 197-198; and Phyllis Myers, Zoning Hawaii: An Analysis of the Passage and Implementation of Hawaii's Land Classification Law, 19-20. 11. State of Hawaii, Act 187, Hawaii Revised Statutes 205; Myers, Zoning Hawaii. 12. Richard Babcock and David L. Callies, "Ecology and Housing: Virtues in Conflict," in Modernizing Urban Land Policy, ed. Marion Clawson, 205ff. The potential conflict between protection of both the built and natural environments on the one hand and the elimination of blight and provision of housing on the other, is great. Chapter 2

State Land Use Controls

1. See for example, Fred R Bosselman and David L. Callies, The Quiet Revolution in Land Use Control; Daniel R. Mandelker, Environmental and Land Control Legislation; State of Hawaii, Hawaii Institute for Management and Government (HIMAG), Growth Management Issues in Hawaii; Phyllis Myers, Zoning Hawaii: An Analysis of the Passage and Implementation of Hawaii's Land Classification Law; Fred P. Bosselman, Duane A. Feurer, and Charles L. Siemon, The Permit Explosion; David L. Callies, "Land Use: Herein of Vested Rights, Plans, and the Relationship of Planning and Controls," University of

i78

Notes to Chapter

2

Hawaii Law Review 2 (1979): 167; Daniel R. Mandelker and Annette B. Kolis, "Whither Hawaii? Land Use Management in an Island State," University of Hawaii Law Review 1 (1979): 48; Carl M. Selinger et al., "Selected Constitutional Issues Related to Growth Management in Hawaii," Hastings Constitutional Law Quarterly 5 (spring 1978): 639; David L. Callies, "The Quiet Revolution Revisited," Journal of the American Planning Association 46 (April 1980): 135; David L. Callies, "Land Use Control in an Island State: Hawaii's Statewide Zoning," Third World Planning Review 2 (1980): 187; Tom Dinell, "Land Use Zoning in a Developing State: A Brief Critique of Hawaii's Land Use Law," Third World Planning Review 2 (1980): 195; Kern Lowry and Michael McElroy, "State Land Use Control: Some Lessons From Experience," State Planning Issues 1 (Spring 1976): 15; Kem Lowry, "Evaluating Land Use Control: Perspectives and Hawaii Case Study," Urban Law Annual 18 (1980): 85. 2. State of Hawaii, HIMAG, Growth Management Issues, 12. 3. State of Hawaii, Hawaii Revised Statutes (H.R.S.), 205 (1961). 4. Tamotsu Sahara, Land and Environmental Specialist, Facilities Planning Office, University of Hawaii, memorandum to the author, September 3,1980. 5. Bosselman and Callies, The Quiet Revolution, 5-6; Dinell, "Land Use Zoning In A Developing State," 6; Lowry and McElroy, "State Land Use Control," 15-16; Myers, Zoning Hawaii, chap. 1. 6. Lowry and McElroy, "State Land Use Control," 15-16. 7. Richard Poirier, "State Zoning: A Case Study of the Concept, Administration and Possible Application of the State of Hawaii Land Use Law" (thesis); Mandelker, Environmental and Land Control Legislation, 271-272; Bosselman and Callies, The Quiet Revolution, 6-7; Myers, Zoning Hawaii, chap. 1. 8. State of Hawaii, Department of Planning and Economic Development (DPED), The State of Hawaii Data Book (1980), 144-145. 9. State of Hawaii, Land Use Commission (LUC), Rules of Practices and Procedure and District Regulations, pt. II, § 2.2. 10. Ibid. 11. Ibid., at 3.3. 12. Hawaii Revised Statutes 205-6 (1980 Supplement); Tatsuo Fujimoto, Head, Land Use Division, Department of Planning and Economic Development, conference with author, Honolulu, December 17,1980. 13. State of Hawaii, LUC, Rules of Practices and Procedure, §§ 9.1, 9.3, and 9.4. (See, for example, chap. 3 for county procedures.) 14. Ibid., §5.2. 15. Neighborhood Board Number 24 v. Land Use Commission, 64 Haw. 265, 639 P. 2d 10976 (1982). 16. For general suggestions in this and other areas concerning the commission, see Daly & Associates, Inc., State Land Use Management Study, October 1981, chap. 6. 17. State of Hawaii, LUC, Rules of Practices and Procedure, § 2-2(3). 18. State of Hawaii, Department of Land and Natural Resources (DLNR), Rules and Regulations (as amended, May 1978), no. 4, subsections B-D.

Notes to Chapter

2

179

19. Ibid. 20. State of Hawaii, DLNR, Rules and Regulations, § 2-2(4). Actually, one lot of less than a half-acre is permitted per subdivision. See State of Hawaii, Hawaii Revised Statutes, § 205-2 (1980 Supplement). 21. For example, Garrett Eckbo et al., State of Hawaii Land Use Districts and Regulations Review; it has been suggested that the loss is temporary, given the report and review requirements imposed by Act 100—the State Plan. Personal communication: Gordon Furutani, Executive Secretary, and Carol Whitesell, member, Land Use Commission, Honolulu, April 1981. 22. See, for example, Mandelker, Environmental and Land Control Legislation, 304-310; acting by means of quasi-legislative hearings and proceedings, the commission allegedly was guilty of numerous procedural irregularities; Town v. Land Use Commission, 55 Haw. 538, 524 P.2d 84 (1974); discussed and criticized in Mandelker and Kolis, "Whither Hawaii?," and Callies, "Land Use: Herein of Vested Rights"; State of Hawaii, Hawaii Revised Statutes, § 205-4 (1976). 23. Mandelker, Environmental and Land Control Legislation, 309; John McConnell, former counsel to the Land Use Commission, interview with author, Honolulu, April 1981; Town v. Land Use Commission, 55 Haw. 538, 524 P. 2d 84 (1974). 24. Town v. Land Use Commission, 55 Haw. at 541, 524 P.2d at 86 (1974). 25. State of Hawaii, LUC, Rules of Practices and Procedures, Regulation 2.35. 26. Hawaii Revised Statutes, § 91 (1968, as amended, 1973 and 1978). 27. Town v. Land Use Commission, 55 Haw. at 545, 524 P.2d at 89 (1974). 28. Ibid., at 88 and89. 29. Ibid., at 90-91. 30. See, for example, Fasano v. Board of County Commissioners, 264 Or. 576, 507 P.2d 23 (1973); questioned in 43 Or. App. 849, 604 P.2d 899 (1979) and 44 Or. App. 603, 606 P.2d 685 (1979); Norman Williams, Jr., American Land Planning Law, vol. 1, §§ 33.02 and 16.03. 31. See David L. Callies, "The Supreme Court is Wrong About Zoning By Popular Vote " Planning 42 (August 1976): 17. See also City ofEastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976) (upholding a mandatory referendum procedure applicable to all zoning decisions. The character of the zoning decision, which involved an 8-acre parcel, was only an issue for dissenting Justice Stevens, who viewed it as "administrative," ibid., at 692, and therefore inappropriate for referendum procedures); Fasano v. Board of County Commissioners, 264, Or. 576, 507 P. 2d 23 (1973) (rezoning of a 32-acre parcel is "quasi-judicial" in nature). But compare Neuberger v. City of Portland, 288 Or. 155, 603 P. 2d 771 (1979) (rezoning of 601-acre parcel, owned by relatively few individuals and involving application of existing policy to specific facts, was quasi-judicial function). 32. See, for example, State of Hawaii, 10th Hawaii Legislature, 1st Session, Senate Bill 390 (1979). The immediate implication of the Town quasi-judicial characterization of the Land Use Commission decisions is in the procedures fol-

i8o

Notes to Chapter

2

lowed by the commission. In fact, the case led to a revision in 1975 of the State Land Use Law to incorporate the contested case provisions of HAPA. State of Hawaii, Hawaii Revised Statutes, § 205-4 (1976) (codified Act 193, 1975 Hawaii Session Laws, 441). For a discussion of the procedural and substantive changes wrought by Act 193, see Mandelker, Environmental and Land Control Legislation, 308-312. 33. Pearl Ridge Community Association v. Lear Siegler, Inc., 65 Haw. 133, 648 P. 2d 702 (1982). 34. Hawaii Revised Statutes § 343-5(a)(2) (1980). However, the same two concurring justices unaccountably applied the interim guidelines passed by the Legislature in 1975 to reach the same result in this case—to invalidate the Land Use Commission's reclassification of conservation land to urban—despite the fact that in 1979, at the time of the hearings and reclassification, they had expired. As the guidelines clearly state, the passage of a state plan automatically causes the guidelines to self-destruct. This occurred in 1978. 35. State of Hawaii, DPED, The Hawaii State Plan, 3. 36. Hawaii Revised Statutes, § 205-4(h) (1976) (codified Act 4, 1976 Hawaii Session Laws, 4; State of Hawaii, Hawaii Revised Statutes, § 226 (Supplement 1979). 37. State of Hawaii, DPED, The Hawaii State Plan, 7-8 and 9-18. 38. Ibid., §§ 226-5 to226-28, 226-51 to226-63, and226-101 to226-104. 39. Hawaii Revised Statutes, § 226 (codified Act 100). 40. State of Hawaii, DPED, The Hawaii State Plan, 19. 41. Hawaii Revised Statutes, § 226-4(2) (1982). 42. State of Hawaii, DPED, The Hawaii State Plan, 21. 43. Hawaii Revised Statutes, § 226-12(b) (1982); State of Hawaii, Department of Planning and Economic Development, The Hawaii State Plan, 21. 44. Hawaii Revised Statutes, § 226-12(b) (1982). 45. Ibid., § 226-54(8)-(9) (1982), as amended by HB177, § 6 (1984). 46. Ibid., § 226-105(l)-(3) (1982). 47. HB177, § 2, amending H.R.S. 226-2(7) and adding subsections 2262(14) and (15) (1984). 48. Ibid., § 226-62 (1982), as amended by HB177, §4 (1984). See also § 22652(a)(2) and226-52(2)(5) (1982). 49. Ibid., § 226-52(a)(5) (1982), as amended by HB177, § 6 (1984). 50. Ibid., § 226-52(b)(2) (1982), as amended by HB177, § 6 (1984). 51. State of Hawaii, 10th Hawaii Legislature, 2nd Session, House Bill 177580(1980). 52. Hawaii Revised Statutes, §205-16.2(1982). 53. Ibid., §226-61(c) (1982). 54. City and County of Honolulu, Revised Charter of the City and County of Honolulu, § 5-412(3) (1973). l\vo of eight proposed development plans have been adopted. 55. It would be interesting to see which would take precedence in case of a conflict between the plan requirements of a county charter (adopted by popular vote) and these detailed requirements contained in Act 100, the State Plan. See Hawaii Revised Statutes, § 226-52(a)(4) (1982) (emphasis added).

Notes to Chapter 2

181

County general plans or development plans shall indicate desired population and physical development patterns for each county and regions within each county. In addition, county general plans or development plans shall address the unique problems and needs of each county and regions within each county. The county general plans or development plans shall further define and implement applicable provisions of this chapter, provided that any amendment to the county general plan of each county shall not be contrary to the county charter. County general plans shall be formulated on the basis of sound rationale, data, analyses, and input from state and county agencies and the general public, and contain objectives and policies as required by the charter of each county. Further, the county general plans should: (1) Contain objectives to be achieved and policies to be pursued with respect to population density, land use, transportation system location, public and community facility locations, water and sewage system locations, visitor destinations, urban design and all other matters necessary for the coordinated development of each county and regions within each county. (2) Contain implementation priorities and actions to carry out policies to include but not be limited to, land use maps, programs, projects, regulatory measures, standards and principles and interagency coordination provisions. 56. Ibid., § 226-52(a)(4) (1982). 57. Ibid., §226-58(a) (1982). 58. Ibid., § 226-57(b) (1982) (emphasis added). 59. Ibid., § 226-57(a) (1982) and § 226-58 (1982); § 226-58. Note that the advisory committee no longer dies with the passage of the concurrent resolution approving the functional plan upon which it has been advising continues in existence to aid the responsible agency in the amendment process required by § 226-54(8) and (9). HB271, § 2 (1984), amends H.R.S. 226-57(c). H.R.S. 22653 provides for membership as follows. (1) The planning director from each county. (2) Nine public members, being four from the City and County of Honolulu, one from the County of Kauai, and two from each of the counties of Maui and Hawaii, provided that in the case of the County of Maui, one such public member shall be from Molokai or Lanai and, in the case of the County of Hawaii, one public member shall be from west Hawaii and one from east Hawaii, appointed by the governor from a list of public persons from each county nominated by the respective mayor, with the advice and consent of the council of the respective county, who shall submit no less than three names for each appointive public member to which the county is entitled. (3) The directors or chairmen from the departments of agriculture, budget and finance, planning and economic development, land and natural resources, health, social services and housing, transportation, and labor and industrial relations; from the office of environmental quality con-

Notes to Chapter 3

l82

trol; the superintendent of education; the president of the University of Hawaii; the executive director of the Hawaii housing authority; and the executive officer of the land use commission. 60. Ibid., §226-55(10) (1982). 61. The ten plans passed by the legislature are on file both at the State Capitol and with the agencies to whose duties they relate. 62. See, for example, the functional plan for conservation land. 63. Annette Chock, Deputy Attorney General, November 7, 1980, letter to Senator RichardS. W. Wong, 7. 64. Hawaii Revised Statutes, § 226-52(a)(4) and226-61(a) (1982). 65. "Twelve Plans for Hawaii," Honolulu Advertiser, October 19, 1980. 66. HB177, §2 (1984), amendingH.R.S. 226-2, "Definitions." 67. HB177, §§4, 8 (1984), amending H.R.S. §§226-52(a) and (b) and 22657(a). 68. Annette Chock, Deputy Attorney General, November 7, 1980, letter to Senator Richard S. W. Wong, 6. 69. Ibid., 8. 70. State of Hawaii, Constitution, Article III, §§ 14,15, and 16. 71. Annette Chock, Deputy Attorney General, November 7, 1980, letter to Senator Richard S. W. Wong, 8. 72. Annette Chock, Deputy Attorney General, April 9, 1980, letter to Representative Ken Kiyabu, Chairman, Committee on State General Planning. 73. Ibid., 3. 74. Life of the Land v. City Council, 61 Haw. 390 606 P.2d 866 (1980). 75. Ibid., 61 Haw. at 424, 606 P.2d at 887. The court also noted that since the council did not intend to circumvent the majority's veto, the nonlegislative act was not violating any legal provision for that reason: In taking those actions, the City Council did not violate the principle of checks and balances, because it did so in accordance with the procedure authorized in the second sentence of RHC, section 3-201, and not with any intent to circumvent the veto power of the Mayor. (Emphasis added.) 76. Aaron Levine, "A Look at the Hawaii Legislature and Planning Issues," Sunday Star-Bulletin and Advertiser, April 29,1984. Chapter 3

Local Planning and Zoning

1. "The ancien regime being overthrown is the feudal system under which the entire pattern of land development has been controlled by thousands of individual local governments, each seeking to maximize its tax base and minimize its social problems, and caring less what happens to all the others." Fred P. Bosselman and David L. Callies, The Quiet Revolution in Land Use Control, 1. See, for example, Clifford L. Weaver and Richard F. Babcock, City Zoning: The Once and Future Frontier; David L. Callies, "The Quiet Revolution Revisited," Journal of the American Planning Association 46 (April 1980): 135. 2. Weaver and Babcock, City Zoning. 3. For example, Richard F. Babcock, The Zoning Game, Municipal Practices and Policies, chap. 7, "The Purpose of Zoning," 115 ff.; Norman Williams,

Notes to Chapter 3

183

American Land Planning Law, 59 vols.; Donald G. Hagman, Urban Planning and Land Development Control Law; Daniel R. Mandelker, Environmental and Land Control Legislation; John Delafons, Land-use Controls in the United States, chap. 1; John F. Garner and David L. Callies, "Planning Law in England and Wales and in the United States," Anglo-American Law Review 1 (1972): 304-306; Charles M. Haar, Land Use Planning, A Casebook on the Use, Misuse and Re-use of Urban Land; Alfred Bettman, "The Constitutionality of Zoning," Harvard Law Review 37 (1924): 834. 4. Fred P. Bosselman, David L. Callies, and John Banta, The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control, chaps. 5 and 6. 5. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), in which the court held that a regulation, if it went too far, could constitute a taking under the Fifth Amendment to the U.S. Constitution, for which compensation would have to be paid. The case has been substantially rehabilitated by a strong dissent in the recent U.S. Supreme Court case of San Diego Gas and Electric Co. v. City of San Diego, 450 U.S. 621 (1981). 6. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The court found this to be the case shortly thereafter in Nectow v. City of Cambridge, 277 U.S. 183 (1928). 7. Except Houston, still unzoned—but nevertheless regulated—today. See Bernard H. Siegan, "Non-Zoning in Houston," Journal of Law and Economics 13 (April 1970): 71. 8. Haar, Land Use Planning, 204. 9. Garner and Callies, "Planning Law in England," 306. 10. In Hawaii local governments are under "home-rule," that is, they derive some of their governmental authority from the State Constitution rather than from state enabling legislation, including substantial land use control powers as set out in various county charters. 11. See, for example, City of Los Angeles v. Gage, 274 P.2d 34 (1954); Art Neon Co. v. City and County of Denver, 488 F.2d 18 (1973); Modjeska Sign Studios v. Berle, 373 N.E.2d 255 (1977). 12. As discussed in Haar, Land Use Planning, sec. 6, 344-345. 13. Kozesnikv. Township of Montgomery, 131 A.2d 1 (1957). 14. State of Hawaii, Constitution, Article VIII, § 2, and Justice Kidwell's broad interpretation favoring expanded home-rule powers in HGEA v. Maui, 59 Haw. 65, 576P.2d 1029 (1978); and Article VIII, § 1. 15. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 46-4(a) (1980 Supplement) : The council of any county shall prescribe such rules and regulations and administrative procedures and provide such personnel as it may deem necessary for the enforcement of this section and any ordinance enacted in accordance therewith. The ordinances may be enforced by appropriate fines and penalties, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances. 16. Ibid. 17. Ibid., §46-4(c) (1981).

184

Notes to Chapter 3

18. State of Hawaii, Constitution, Article VIII, §§ 1 and 2. 19. City and County of Honolulu, Revised Charter of the City and County of Honolulu, § 5-412-3 (1973): No public improvement or project, or subdivision or zoning ordinance shall be initiated or adopted unless it conforms to and implements the development plan for that area. 20. Ibid., §5-408(1973): . . . the statements shall include, but not be limited to, policy and development objectives to be achieved with respect to the distribution of social benefits, the most desirable uses of land within the city, the overall circulation pattern and the most desirable population densities within. 21. Ibid., §5-409. 22. Ibid. 23. Baker v. Milwaukee, 533P.2d772 (1975). 24. Dalton v. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1966). 25. County of Maui, Charter of the County Maui, § 8-8.4 (1977, as amended), General Plan and § 9-31; County of Maui, Ordinance No. 1052 (1980), Maui County General Plan. 26. County of Maui, Charter of the County of Maui, § 9-2.1 (1977; as amended). 27. County of Maui, Permanent Ordinances of Maui, § 9-3.1 (1973). 28. Ibid., §§ 9-2.1 and 9-3.4, which states: (a) The council shall adopt community plans or revisions thereto by ordinance. (b) Prior to the adoption of any community plan, the council shall hold a public hearing on proposed plan. 29. County of Maui, Charter of the County of Maui, § 8-8.2(3) (1977, as amended) and § 8-8.4 of the charter, which sets out several specific items to be contained in the general plan: 1. . . . recognize and state . . . major problems and opportunities concerning . . . needs and . . . development of the county. . . . 2. [recognize and state] . . . the social, economic and environmental effects of . . . development. . . . 3. . . . set forth the desired sequence, patterns and characteristics of future development. 4 set forth . . . broad policies for long-range development. . . . 5. . . . contain statements of social, economic, environmental and design objectives to be achieved . . . [including] policy and development objectives . . . [regardingjdistribution of social benefits the more desirable uses of land . . . and the most desirable population densities. . . . In literal terms, the general plan that was enacted by ordinance in Maui County satisfies only items 4 and 5. 30. County of Kauai, Kauai County Charter, § 14.06 (1969, as amended).

Notes to Chapter 3

185

31. Ibid., § 14.07 (1969, as amended) Development Plan. "Development plan" means a relatively detailed scheme for the replacement or use of specific facilities within the framework of and implements the general plan; and § 14.08 (1976). 32. County of Hawaii, Hawaii County Charter, § 3-17(a) and (b). 33. Ibid. 34. Ibid. 35. Meshenberg, Michael J., The Language of Zoning: A Glossary of Words and Phrases, 14. 36. See Harland Bartholomew and Associates, Review and Evaluation, Comprehensive Zoning Code; speech by Fred Bair, mainland consultant involved in the last comprehensive revision, Honolulu, October 8, 1982, Growth Management Conference on Implementation: Zoning, Honolulu City Council. 37. See speech by Michael McElroy, Honolulu Director of the Department of Land Utilization, Honolulu, October 8, 1982, Growth Management Conference on Implementation: Zoning, Honolulu City Council; Harland Bartholomew and Associates, Comprehensive Zoning Code; City and County of Honolulu, Department of Land Utilization (DLU), Land Use Ordinance, working draft, n.d. 38. City and County of Honolulu, Comprehensive Zoning Code (CZC) 1978, Supplement 1979, § 21-1.8. 39. Ibid., Article I and § 21-1.9. 40. Ibid., §21-6.2. 41. Ibid., §21-6.2(a). 42. Ibid., §21-6.2(b). 43. Ibid., §21-6.2(c)(6). 44. Ibid., §21-6.2(e). 45. Ibid., §21-6.3. 46. Ibid., see § 21-1.10, definitions. 47. Ibid., §§21-6.5and21-6.6. 48. For a general discussion of performance standards, see Williams, American Land Planning Law, §§ 70.06 and 70.07. 49. City and County of Honolulu, Comprehensive Zoning Code, §§ 21-2.20 to 21-2.22. 50. Ibid. 51. See, for example, discussion in Weaver and Babcock, City Zoning. 52. Compare Richard F. Babcock, Jan Krasnowiecki, and David N. McBride, Legal Aspects of Planned Unit Residential Development. 53. See, for example, Franklandv. City of Oswego, 517P.2d 1042 (1973). 54. See Perry v. Planning Commission of County of Hawaii, 62 Haw. 666, 618 P.2d 95 (1980) and Scrutton v. Sacramento, 79 Cal. Rep. 872 (1969). 55. Developments within the overlay zone must conform to the requirements of both zones or the more restrictive of the two. It usually is employed to deal with special physical characteristics such as floodplains or steeply sloping areas, but it has other applications as well. See Meshenberg, The Language of Zoning, 24.

i86

Notes to Chapter 3

56. Personal communication: Robert Jones, Deputy Director of the Department of Land Utilization, Honolulu. Jones said that the overlay characterization is more accurate. 57. City and County of Honolulu, Comprehensive Zoning Code, § 21-10.12. The ordinance also provides for special buffer zones when a PUD adjoins a single-family residential zone; see § 21-10.14. 58. Ibid., §§ 21-10.4(b) and 21-1.13(c), discussed in section on administration. 59. Ibid., §21-13.2. 60. Ibid., §21-13.3. 61. Ibid., §§ 21-13.5, 21-13.6, and21-13.8. 62. Compare, City and County of Honolulu, Ordinance 79-80, An Ordinance Relating to the Issuance of Building Permits for Waialae-Kahala, effective October 24, 1979 to June 30, 1980. The "moratorium" effect of this ordinance was to give the city time to pass the HCSD for Kakaako. 63. City and County of Honolulu, Ordinance no. 4551, An Ordinance Relating to the Issuance of Building Permits for Kakaako, effective January 23, 1976. 64. Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 (1980). 65. Ibid.; Life of the Land, Inc. v. City Council, 60 Haw. 446, 592 P.2d 26 (1979). 66. Allen v. City and County of Honolulu, 58 Haw. 432, 571 P.2d 328 (1977); Denning v. County of Maui, 52 Haw. 653, 485 P.2d 1048 (1971). 67. For an extended discussion of these cases and their implications, see David L. Callies, "Land Use: Herein of Vested Rights, Plans and the Relationship of Planning and Controls," University of Hawaii Law Review 2 (1979): 167. 68. County of Kauai v. Pacific Standard Life Insurance Co., 65 Haw. 318, 653 P. 2d 766 (1983). 69. For an excellent checklist and discussion, see Donald H. Hagman, "Estoppel and Vesting in the Use of Multi-Land Use Permits," Southwestern University Law Review 11 (1980): 545. The developer won a second referendum, however, and is seeking his building permits back, despite state and federal court challenges to the second referendum. L. Chang, "Kauai Project to be Resumed," Honolulu Star-Bulletin, April 28, 1984. 70. Rabcock, The Zoning Game. 71. City and County of Honolulu, Revised Charter of the City and County of Honolulu, §§ 6-1003, 5-402 (1973 as amended); City and County of Honolulu, Comprehensive Zoning Code, § 21-1.3. 72. City and County of Honolulu, Revised Charter of the City and County of Honolulu, §§ 6-1003 and 6-1005 (1973 as amended). 73. Ibid., § 6-1009(a); City and County of Honolulu, Comprehensive ZoningCode, § 21-1.4. 74. City and County of Honolulu, Comprehensive Zoning Code, § 21-1.13 (a)(1)75. City and County of Honolulu, Revised Charter of the City and County of Honolulu, § 6-1003(a).

Notes to Chapter 3

187

76. City and County of Honolulu, Comprehensive Zoning Code, § 211.13(a)(3). 77. City and County of Honolulu, Revised Charter of the City and County of Honolulu, §§ 5-405 and 5-406. 78. Ibid., § 5-406. It may also perform "such other related duties as may be necessary to fulfill its responsibilities under this charter or as may be assigned by the mayor or the council'" 79. Ibid., § 5-406(c) (note that the CZC is select on this point); City and County of Honolulu, Comprehensive Zoning Code, § 21-1.13(a) (4) (note that the charter is silent on this point). 80. City and County of Honolulu, Comprehensive Zoning Code, § 211.13(a)(5). 81. See Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 at 889 (1980) and Kailia Community Council v. City and County of Honolulu, 60 Haw. 428, 591 P.2d 602 (1979). 82. Carlsmith, Carlsmith, Wichtnan and Case v. CPB Properties, Inc., 64 Haw. 584, 945 P.2d 873 (1982). 83. Ibid., 64 Haw. at 594, 645 P.2d at 880. 84. For example, the Oregon courts in Fasano v. Board of County Commissioners of Washington County, 264 Or. 574, 507 P. 2d 23 (1973). 85. For example, see City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). 86. See Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 at 887 (1980). 87. City and County of Honolulu, Comprehensive Zoning Code, § 211.12.

88. Ibid., §21-1.12(e). 89. Ibid., §21-1.13(c). 90. Ibid., § 21-2.31(c), and see generally § 21-2.30 et seq. 91. Ibid., §21-1.13(d). 92. Ibid., §§21-2.60 and21-2.63. 93. City and County of Honolulu, Revised Charter of the City and County of Honolulu, § 6-1009(b). 94. City and County of Honolulu, DLU, Rules Relating to Administrative Procedure, Zoning Board of Appeals, 4.1 etseq. 95. Hawaii Revised Statutes, § 46-4 (1980). 96. City and County of Honolulu, Comprehensive Zoning Code, §§ 211.7(a) and 21-1.7(b). 97. Ibid., §§21-1.7(c), 21-1.7(d), and21-1.7(e)(2). 98. Ibid., §21-1.7(e)(4). 99. Ibid., §21-1.10. 100. Marsland v. International Society for Krishna Consciousness, 66 Haw. , 657 P. 2d 1019 (1983). 101. County of Maui, Permanent Ordinances of Maui, chap. 8, Article I (Maui Zoning Ordinance), at §§ 8-1.3 and 8-1.17. 102. Ibid., §8-1.17(a)(6).

i88

Notes to Chapter

3

103. Ibid., §8-1.17(e). 104. Ibid., §8-1.17(b). 105. Ibid., §8-1.17(d). 106. Ibid., Ordinance no. 787, An Ordinance Relating to Projects Districts. 107. See County of Maui, Wailuku-Kahului General Plan: A Summary. According to the plan, the general plan's use designation and patterns are usually premature and lacking in adequate development detail, thereby precluding design flexibility. What "project districts" permit is "efficient planning of public service and facilities rather than waiting for the owners to initiate such projects in locations of their choice and ask that the public facilities be adjusted in accordance." 108. County of Maui, Permanent Ordinances of Maui, Ordinance no. 787, An Ordinance Relating to Projects Districts, § 8-6.4. 109. Ibid.; 8-1.18(a). 110. Ibid., §§8-1.18(a) and8-1.18(c). 111. Ibid., § 8-2.1, etseq. 112. Personal communication: Lee Ohigashi, Deputy Corporation Counsel, County of Maui, January 1981. 113. County of Maui, Permanent Ordinances of Maui, Ordinance no. 787, An Ordinance Relating to Projects Districts, § 8-1.21. 114. Ibid., §§8-1.22to8-1.24. 115. County of Maui, Charter of the County of Maui, §§ 8-8.2 and 8-8.3 (1977, as amended). 116. County of Maui, Permanent Ordinances of Maui, chap. 7, Article I (Maui Zoning Ordinance), § 7-1.1. 117. County of Maui, Charter of the County of Maui, §8-5.4(2). 118. County of Maui, Permanent Ordinances of Maui, chap. 7, Article I (Maui Zoning Ordinance), § 7-1.3. 119. County of Maui, Permanent Ordinances of Maui, Ordinance no. 1052, Maui County General Plan, §§ 9-3.5(a) and 9-3.5(b). 120. Ibid., Ordinance no. 1091, Comprehensive Conditional Zoning Amendment (effective December 8, 1980). 121. Ibid., § 1. 122. Ibid., new § 8-1.21A(b). 123. County of Kauai, Ordinance no. 164, Comprehensive Zoning Ordinance (1972). 124. Brian Nishimoto, Director of Planning, and Michael Belles, Deputy County Attorney, County of Kauai: interview with author, Lihue, January 8, 1981. 125. County of Kauai, Comprehensive Zoning Ordinance, §2.03. 126. Ibid., §2.01. 127. County of Kauai, Ordinance no. 213. 128. California is one state that forbids the practice, based on the decision handed down in Scrutton v. County of Sacramento, 79 Cal. Rep. 872 (1969). Illinois, on the other hand, allows it in a limited way, see Goffinet v. County of Christian, 357 N.E.2d 442 (1976).

Notes to Chapter 4

189

129. Perry v. Planning Commission of the County of Hawaii, 62 Haw. 666, 618 P. 2d 95(1980). 130. County of Kauai, Comprehensive Zoning Ordinance, §§ 3.019, 7.00, 7.01,7.02, and 8.00. 131. Ibid., §§3.034 and 8.05. 132. Ibid., §§4.02, 4.03, and4.04. 133. Ibid., §§5.01 and5.02. 134. Ibid., §§3.052 to3.054A and §3.055. 135. Ibid., §§3.065and3.065(B). 136. County of Kauai, Ordinance no. 234, An Ordinance Relating to Agriculture Parks. 137. County of Kauai, Comprehensive Zoning Ordinance, §9.02. 138. Ibid., §9.05. 139. Ibid., §§ 10-B and 10-E (as amended by County of Kauai, Ordinance no. 178). 140. Ibid., § 10(f). 141. County of Hawaii, Comprehensive Zoning Code, Article II, § 1, and Article 22, § 2: eleven districts require such approval for any structure. 142. Ibid., Article 22, § 3, and County of Hawaii, Hawaii County Charter, § 5-6.3. 143. County of Hawaii Comprehensive Zoning Code, § 3(f). 144. Ibid., § 3, and Article 8, § 1. 145. Ibid., Article 18, § 1. 146. Ibid., Article 16, § 1. 147. Ibid., Article 17, § 1. 148. Ibid., Article 17, §§3and4. 149. Ibid., Article 23, §§ 3(f)(3), 3(f)(4), and 3(f)(5). 150. Ibid., Article23, §§ 3(c) and3(d). 151. Ibid., Article 1, §3.154. 152. Ibid., Article 27, §§ H2(a) and H2(b). 153. Ibid., Article27, §§ H2(b)(l), H2(c), H-4, andH-5. 154. County of Hawaii, Hawaii County Charter, § 5-4.2(h). 155. Ibid., §§ 5-4.2(h) and 5-6.3. 156. Ibid., §§7and7.03. Chapter 4

Subdivisions

1. A. James Casner and W. Barton Leach, Cases and Text on Property, chap. 27. 2. See, for discussions of subdivision laws, their origin and application, J. F. Garner and David L. Callies, "Planning Law in England and Wales and in the United States," Anglo-American Law Review 1 (1972): 312; Donald G. Hagman, Urban Planning and Land Development Control Law, chap. 9; Daniel R. Mandelker and Roger A. Cunningham, Planning and Control of Land Development: Cases and Materials, 783. 3. See Mandelker and Cunningham, Planning and Control; Hagman, Urban Planning and Land Development.

îgo

Notes to Chapter

4

4. Mandelker and Cunningham, Planning and Control, 783-785; Hagman, Urban Planning and Land Development, 254-258. 5. See, for example, Lomarch Corp. v. Mayor and Council of Englewood, 237 A.2d 881 at 884 (1968). 6. Associated Homebuilders of Greater East Bay, Inc. v. City of Walnut Creek, 484 P.2d 606 (1971); Krughoff v. City of Naperville, 354 N.E.2d 489 (1977); Call v. City of West Jordan, 606 P.2d 217 (1979). See David R. Godschalk, et al., Constitutional Issues of Growth Management, 62-63. 7. Garner and Callies, "Planning Law in England and Wales and in the United States," Anglo-American Law Review 1 (1972): 312. See, for example, Hagman, Urban Planning and Land Development Control Law, 251-252. 8. Garner and Callies, "Planning Law in England," 312; Mandelker and Cunningham, Planning and Control, 793-796. 9. For example, Waterhouse v. Capital Investment Co., 44 Haw. 235, 353 P.2d 1007 (1960); Neponsit Property Owners Association v. Emigrant Industrial Park, 15 N.E.2d 793(1938). 10. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 46.6 (Supplement 1979). 11. City and County of Honolulu, Planning Commission, Subdivision Rules and Regulations. 12. City and County of Honolulu, Revised Charter of the City and County of Honolulu, §§ 5-406, 6-1003, 6-1007, and 6-1009. 13. City and County of Honolulu, Planning Commission, Subdivision Rules and Regulations, § 2-201. 14. Ibid., §2-202. 15. Ibid., § 2-203 and § 3-303. 16. City and County of Honolulu, Revised Ordinances, § 22-7.3 (1977). 17. Ibid., §22-7.5. 18. Ibid., §22-7.3. 19. City and County of Honolulu, Department of Land Utilization, Rules and Regulations on Park Dedication, Rule 9. 20. Ibid., § 22-7.7 and § 22-7.8. Regional parks are given last priority. 21. County of Kauai, Kauai County Subdivision Ordinance (Ordinance no. 175, as amended 1975), § 2.084. 22. Ibid., §2.085 and §2.086. 23. City and County of Honolulu, Department of General Planning, Honolulu Development Plan, Common Practices, § 9; County of Maui, Maui County Subdivision Ordinance (Ordinance no. 789, amended 1974, codifies Article I, chap. 1 of Permanent Ordinances of Maui), §§ 11-1.6, 11-1.7, 11-1.8, 111.9(j), 11-1.16, 11-1.23, and 11-1.24. 24. County of Maui, Maui County Subdivision Ordinance, § 11-1.9(j). 25. County of Hawaii, Hawaii County Subdivision Ordinance (codifies chap. 9, Revised Ordinances of Hawaii), § 4.10. 26. Ramapo, 285 N.E.2d 291 (1972). There, New York's highest court upheld subdivision regulations that prohibited the building of more than four houses in an area that was determined to be inadequately served by water, sewer, power,

Notes to Chapter

5

and fire protection service. The landowners either waited for Ramapo or built the services at their own cost. For discussion and criticism of Ramapo and sequencing/control generally, see Randall W. Scott, ed., The Management and Control of Growth, chap. 8 and 9; Fred P. Bosselman, "Can the Town of Ramapo Pass a Law to Bind the Rights of the Whole World?," Florida State Law Review 1 (1973): 234. 27. See, for example, the two development plans for the City and County of Honolulu governing the urban core and Ewa districts. Chapter 5

Redevelopment and Housing

1. U.S. Department of General Services, Code of Federal Regulations 24, §§ 570.603, 570.604, 570.609, and 570.610. 2. U.S. Congress, United States Statutes at Large 82 (1971, as amended): 476; U.S. Congress, United States Code 42 (1971, as amended): § 1401 etseq. 3. United States Code 42 (1974, as amended in 1977): §§ 5301-5317; Jan Z. Kransnowiecki, Cases and Materials on Housing and Urban Development, pt. II, 243; Dennis Keating and Richard LeGates, "Who Should Benefit from the Community Development Block Grant Program?," The Urban Lawyer 10 (fall 1978): 701. 4. United States Code 42 (1974): § 5301 et seq. A "HAP" identifies the community's need for low and moderate income housing, the condition of its housing stock, and the goals for assistance best suited to meet those needs. 5. State of Hawaii, Hawaii Revised Statutes, chap. 206E, Hawaii Community Development Authority, § 206E-13. HAPS do not apply to developments of twelve or fewer units, however. 6. Code of Federal Regulations 24, § 880.201 etseq. 7. Ibid., §§880.206 and880.210. 8. United States Statutes at Large 91 (1977): 1111; United States Code 42 (1977): § 5301 etseq. 9. Code of Federal Regulations 24, §§ 570.201 and 570.202. 10. Ibid., § 570.300 et seq., and especially § 570.301. These by and large implement the statutory language found at United States Code 42 (1974, as amended): § 5304, Procedures for Award of Grants. 11. Code of Federal Regulations 24, §570.307. 12. For discussion, see proposed plan, State of Hawaii, Hawaii Housing Authority, Hawaii State Housing Plan: A Functional Plan to Fulfill the Goals, Objectives and Policies of the Hawaii State Plan, 11-13 through 11-16 (since replaced by a much-reduced draft; see chap. 2 and discussion there dealing with functional plans). 13. Hawaii Revised Statutes, §46-15.1 (1974). 14. City and County of Honolulu, Office of Information and Complaint, Departmental and Agency Report of the City and County of Honolulu; for Fiscal Year July 1,1976-June 30,1977, 299-309. 15. State of Hawaii, Hawaii Housing Authority, Hawaii State Housing Plan, 11-13 through 11-16. 16. Ibid.

192

Notes to Chapter 5

17. Hawaii Revised Statutes, § 359G (1971). See Trip Strauss, "Affordable Housing: The Problem Gets Worse," Hawaii Business, June 1981. 18. Hawaii Revised Statutes, §356-5(1976). 19. Ibid., §356-15(b). 20. Ibid., §356-15(d). 21. Personal communication: Michael McElroy, Director, Department of Land Utilization, Honolulu, June 1981. 22. Hawaii Revised Statutes, § 356-20(b) (1978). 23. Ibid., § 356-20(a) (1978) and § 359G-4(d) (1979). 24. Personal communication: Michael McElroy, Director, Department of Land Utilization, Honolulu, June 1981. 25. Hawaii Revised Statutes, 516 (1976). For an analysis of its provisions, see James P. Conahan, "Hawaii's Land Reform Act: Is It Constitutional?," Hawaii Bar Journal 6 (July 1969): 31. 26. Hawaii Revised Statutes, § 516-83 (1975) and § 516-83(a)(9) (1975). 27. Ibid., § 516-83(a)(9) (1975). 28. Ibid., § 516-6 (1967), § 516-7 (1975), § 516-22 (1976), and § 516-23 (1975). 29. Midkiffv. Tom, 471 F. Supp. 871, 875-881 (1979). 30. Midkiffv. Tom, 702 F.2d 788 (1983). 31. See David L. Callies, "Land Reform In Hawaii: 'Majoritarian Tyranny' or 'Sensitive Social Policy'?," Zoning Digest 35 (1983): 12. 32. Hawaii Housing Authority v. Midkiff, 52 U. S. Law Week 4673 (1984). 33. Ibid., at 4676. 34. Ibid., at 4677. 35. See David L. Callies, "A Requiem for Public Purposes," Zoning Digest 36 (June 1984): 16. 36. Hawaii Revised Statutes, § 206E-1 (1976) and § 206E-7 (1976). 37. Ibid., § 206E-31 (1976), § 206E-32 (1976), and § 206E-33 (1982). 38. State of Hawaii, Senate, "Relating to Hawaii Community Development Authority," 890. 39. Hawaii Revised Statutes, § 206E-1 (1976). See, for example, David L. Callies, "A Hypothetical Case: Value Capture/Joint Development Techniques to Reduce the Public Costs of Public Improvements," Urban Law Annual 16 (1979): 155. 40. Hawaii Revised Statutes, § 206E-5(a) (1976) and 206E-32 (1976). 41. Ibid., 206E-31 (1976). 42. Ibid. 43. Ibid., §206E-33 (1976). 44. As provided by Hawaii Revised Statutes, § 206E-5 (1976). 45. Donald Monson, "Difficulties with Kakaako Development Plan," Sunday Star-Bulletin and Advertiser, October 3, 1982. 46. State of Hawaii, Hawaii Community Development Authority, Malama Kakaako (December 1979): 1, 8; (June 1980): 2. 47. Hawaii Revised Statutes, § 206E-6 (1976) and § 206E-7 (1976). 48. Ibid., § 206E-10 (1976), § 206E-12 (1976), and § 206E-14 (1976).

Notes to Chapter 6

193

49. State of Hawaii, Sea Grant Marine Advisory Program, "Kakaako," Hawaii Coastal Zone News (May 1980): 4. 50. City and County of Honolulu, Ordinance no. 80-58, An Ordinance to Establish "The Kakaako Special Design District" KSDD, 2-6. 51. Ibid., 15-16. 52. State of Hawaii, Hawaii Housing Authority, Hawaii State Housing Plan: A Functional Plan to Fulfill the Goals, Objectives and Policies of the Hawaii State Plan; State o{ Hawaii, Hawaii Revised Statutes, chap. 226 (1978). For discussion of the legal issues involved here, see chap. 2 on state land use planning and controls. 53. Hawaii Revised Statutes, § 46-4(c) (1981 Supplement). 54. For example, City and County of Honolulu, Ordinance no. 83-48, A Bill For An Ordinance To Rezone A Portion of Existing P-l Preservation District, Situated at Puheke, Kuapaa, Kailua, Koolaupoko, Oahu, Hawaii, To R-6: Residential District Nos. R-99A and R-99B. See David L. Callies, "Requiring Low-Income Housing: Is 'Inclusionary Zoning' Legal?" Hawaii Architect 12 (July 1983): 8; Trip Strauss, "Affordable Housing: The Problem Gets Worse," Hawaii Business (June 1981): 26-30; Linda J. Bozung, "Inclusionary Housing: Experience Under a Model Program," Zoning and Planning Law Report 6, (1983): 89; Linda J. Bozung, "A Positive Response to Growth Control Plans: The Orange County Inclusionary Housing Program, Pepperdine Law Review 9 (1982): 819; Robert C. Ellickson, "The Irony of Inclusionary Zoning," Southern California Law Review 54 (1981): 1167. 55. Southern Burlington NAACP v. Mt. Laurel Township, 456 A.2d 390 (1983). Chapter 6

Historic Preservation

1. Rebman v. City of Springfield, 250 N.E.2d 282 (1969); Trustees of Sailor's Snug Harbor v. Piatt, 288 N.Y.S.2d 314 (1968) Maher v. New Orleans, 516 F.2d 1051 (5th Cir. 1975). For an excellent analysis of pre-1970 cases, see the classic work by Jacob H. Morrison, Historic Preservation Law. 2. Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). 3. Ibid. See David L. Callies, "Grand Central Station: Landmark Preservation Law," Hawaii Architect (October 1978): 11; John J. Costonis, "The Disparity Issue: A Context for the Grand Central Terminal Decision," Harvard Law Review 91 (1977): 402. 4. See, for example, Society for Ethical Culture v. Spatt, 415 N.E.2d 922 (1980); 900 G. Street Associates v. Department of Housing and Urban Development, 430 A.2d 1387 (1981). 5. For example, the conferences "Reusing Old Buildings," September 1982 in Baltimore, and "Historic Preservation In Honolulu," January 1982 in Honolulu. Currently in the Economic Recovery Tax Act of 1981, § 212. For an excellent analysis of historic preservation today, see Christopher Duerksen, A Handbook on Preservation Law. 6. U.S. Congress, Tax Reform Act of 1976, United States Statutes at Large 90

194

Notes to Chapter

6

(1976): 1916, §§ 701(f)(1), 701(f)(2), and 701(f)(7); Revenue Act of 1978, United States Statutes at Large 92 (1978): 2900, 2903. 7. Ibid. 8. Sandra Oshiro, "New Federal Law May Make Hotel Preparation Harder," Honolulu Advertiser, February 10, 1981. 9. Tom Coughlin, "Overview: Economic Recovery Act of 1981" in Reusing Old Buildings, 67. 10. U.S. Congress, United States Code 16 (1976): § 420 et seq.; United States Code 42 (1976): § 4321 et seq.; United States Code 16 (1976): § 420 et seq. 11. See, for example, Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Circuit 1976), cert, denied 429 U.S. 999 (1976). This "pervasiveness" is due primarily to the large number of projects—highways, housing, wastewater treatment plants, and programs such as coastal zone, flood hazard, and so forth— which are partially or completely funded by the federal government in Hawaii. 12. U.S. Department of General Services, Code of Federal Regulations 36, § 800.10.

13. For example, The Antiquities Act of 1906, United States Code 16 (1906): § 1131 et seq. The Historic Sites Act of 1935; United States Code 16 (1935): § 461 et seq. 14. United States Code 16 (1976): § 470(f). 15. Ibid., 49, § 1653(f). 16. Ibid., 42 (1969): § 4321 et seq., National Environmental Policy Act of 1969. 17. Code of Federal Regulations 40, 1500.15. See, Aluli v. Brown, 437 F. Supp. 602 (1977). 18. United States Statutes at Large 83 (1969): 852, National Environmental Policy Act of 1969, § 101(b)(4). 19. Watch v. Harris, 603 F.2d 310 (1979). 20. Stop H-3 Association v. Coleman, 533 F.2d 434 (9th Circuit, 1976), cert. denied, 429 U.S. 999 (1976). 21. "Ban on H-3 Applies Also to Halawa," Honolulu Advertiser, March 28, 1981. 22. Jim Borg, "Navy: 171 Target Isle Sites Worthy of Being Preserved," Honolulu Advertiser, August 19, 1980. 23. See, for example, Aluli v. Brown, 437 F. Supp. 602 (1977) and discussion in chap. 7; Borg, "Navy: 171 Target Isle Sites Worthy of Being Preserved"; Beverly Futa, "Navy Picks Kahoolawe Areas for Historic List," Honolulu StarBulletin, August 19,1980. 24. Lee Gomes, "Kahoolawe Victory Claimed by Ohana," Honolulu StarBulletin, January 28, 1981; "Kahoolawe Officially Historic," Honolulu Advertiser, March 19,1981. 25. Gomes, "Kahoolawe Victory Claimed by Ohana"; Lee Gomes, "Kahoolawe National Listing Won't Halt Navy's Bombing," Honolulu Star-Bulletin, January 29, 1981. 26. Order issued July 3, 1980, by Judge Sodetani dismissing appeal of Kyo-Ya Co., Ltd., to set aside the listing of the Royal Hawaiian Hotel on the Hawaii

Notes to Chapter 6

195

Register of Historic Places by the Hawaii Historic Places Review Hoard; State of Hawaii, Department of Land and Natural Resources (DLNR), State Historic Preservation Plan, 111-35; "Board Takes 579 Sites Off State's Historic List," Star-Bulletin, March 12, 1980. See, Aluli v. Brown, 437 F. Supp. 602 (1977). 27. State of Hawaii, Constitution, Article IX, § 7. See Morrison, Historic Preservation Law. 28. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 6E-7 (1976) and § 6E-8 (1976). 29. Ibid., chap. 195(1976). 30. Ibid., chap. 173A (1976). 31. Ibid., § 6E-31 (1976). 32. Ibid., § 6E-5.5 (1980Supplement). 33. State of Hawaii, Historic Places Review Board, Rules and Regulations. 34. Ibid., no. 4. 35. Hawaii Revised Statutes, § 6E-10 (1976). 36. See the photograph in the August 8, 1979 Honolulu Advertiser "Letters to Editor" page taken about 1927 showing the Royal Hawaiian rising with the caption, "Vanished Waikiki Landmark—the wooden seaside building on the left was razed shortly after this picture was taken to make room for the Royal Hawaiian Hotel rising in the background"; "Royal Hawaiian Hotel Placed on State's Historic Register," Honolulu Star-Bulletin, January 15,1980. 37. Personal communication: Phyllis Fox, Director, Historic Hawaii Foundation, March 10, 1981. 38. Pat Guy, "Judge Upholds Royal's Historic Listing," Honolulu Star-Bulletin, July 3, 1980. 39. Joe Farrell, "Opening Up Space Downtown," Honolulu Star-Bulletin, July 22, 1980; Clara Orenstein, "The Alexander Young's Place in History," Honolulu Star-Bulletin, December 25, 1980; Editorial, Honolulu Star-Bulletin, December 17, 1980; Editorial, Honolulu Advertiser, December 17, 1980; letter of George V. Whisenand to the Honolulu Star-Bulletin, December 17, 1980; Kit Smith, "High-Rise and Park to be Built in Place of Young Building," Honolulu Advertiser, December 16, 1980; "Young Building Makes National List," Honolulu Star-Bulletin, August 6, 1980; Lee Gomes, "Young Building Might Be Torn Down," Honolulu Star-Bulletin, July 22, 1980. 40. Hawaii Revised Statutes, § 246-34 (1976). 41. State of Hawaii, DLNR, Rules and Regulations, no. 4 (as amended in May 1978). This is a multipage minizoning ordinance—albeit self-imposed— which the Land Board uses to decide use applications in the Conservation District; Hawaii Revised Statutes, chap. 205 (1979 Supplement). 42. Hawaii Revised Statutes, chap. 343 (1974). This is described in detail in chap. 8 on Environmental Impact Assessments. 43. Ibid., § 343-5 (1979 Supplement); State of Hawaii, Environmental Quality Commission, Rules of Practice and Procedure, Sub-Part E, § 1.42 (1975). 44. State of Hawaii, Hawaii Revised Statutes, chap. 205A (1979 Supplement). See chap. 6 on Coastal Zone Management for a detailed analysis.

196

Notes to Chapter 6

45. Ibid., § 205A-2(b)(2) (1979 Supplement) and § 205A-29 (1979 Supplement) . 46. For example, 579 sites were delisted in 1980 for lack of notice to the owners. "Board Takes 579 Sites Off State's Historic List," Honolulu Star-Bulletin, March 12, 1980. 47. Hawaii Revised Statutes, § 226-12 (1979 Supplement). 48. State of Hawaii, DLNR, State Historic Preservation Plan. 49. Ibid., superseded draft of February 1980,111-67. 50. The statutes enabling (but not requiring) each county to pass local historic zoning provisions: State of Hawaii, Hawaii Revised Statutes, § 46-4 (1976). 51. City and County of Honolulu, Comprehensive Zoning Code, Articles 12 and 13 [Article 15] (1978). 52. Ibid., §21-1202(1978). 53. Ibid., § 21-12.3 [21-1203] (1978). 54. Ibid., Article 13 [21-1500] (1978). 55. Ibid., § 21-1.13(a)(5) [21-13.3(b)(4)] (1978). 56. Ibid., § 21-13.2(f) [21-1501](1978). The other six: new satellite communities; underutilized urban areas; areas adjoining natural open space and recreational uses; areas lacking public services; impact area of proposed rapid transit stations; and areas of critical economic, social, and physical concerns to be of significant effect upon the well-being of the community. 57. County of Kauai, Comprehensive Zoning Ordinance, §§ 406-E and 1.03-L; Brian Nishimoto, Planning Director, County of Kauai: interview with the author, Lihue, July 3, 1980. 58. County of Kauai, Comprehensive Zoning Ordinance, §4.01-4.05. 59. Ibid., §4.06-C-2. 60. Ibid., §4.06. 61. County of Hawaii, Hawaii County Charter, §§ 3-17(a) and 3-17(b). 62. County of Hawaii, County of Hawaii, The General Plan, adopted by Ordinance no. 439 in 1971. 63. County of Hawaii, Ordinance no. 463, Honoka'a Urban Design Plan; County of Hawaii, Ordinance no. 217, Kailua Village Design Plan. 64. County of Hawaii, Comprehensive Zoning Code, chap. 8 and Article 28. 65. County of Hawaii, Ordinance no. 445, Northeast Hawaii Community Development Plan, 119. 66. County of Maui, Charter of the County of Maui, chap. 8 (Department of Planning). 67. Paul Mancini, Corporation Counsel, County of Maui: interview with author, Kahului, June 30, 1980. 68. County of Maui, Ordinance no. 1052, Maui County General Plan, "Exhibit A," 4. 69. County of Maui, Maui Zoning Ordinance, Article 3, "Maui County Historic Districts Ordinance," §§ 8-3.2, 8-3.6, 8-3.7, 8-3.12. 70. Ibid., §8-3.13. 71. Ibid., §8-3.14.

Notes to Chapter 7 Chapter 7

197

Managing the Coastal Zone

1. Daniel R. Mandelker and Thea A. Sherry, "The National Coastal Zone Management Act of 1972," Urban Law Annual 7 (1974): 119. 2. U.S. Congress, Coastal Zone Management Act of 1972, United States Code 16 (1972): § 1451 et seq. For general description and comments see, Sarah Chassis, "The Coastal Zone Management Act," Journal of the American Planning Association 46 (April 1980): 145; Gilbert L. Finnell, Jr., "Coastal Zone Management: An Introduction," American Bar Foundation Journal 1978 (spring 1978): 153; Fred P. Bosselman, Duane A. Feuer, and Tobin M. Richter, Federal Land Use Regulation, Chapter 5; Elaine Moss, ed., Land Use Controls in the United States: A Handbook on the Legal Rights of Citizens, chap. 6; Daniel R. Mandelker, Environmental and Land Controls Legislation, chap. 6. 3. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 205A-1 et seq. (1974, and 1976 Supplement). 4. U.S. Congress, Coastal Zone Management Act, § 302(c), United States Code 16 (1978 Supplement): § 1451(c). 5. U.S. Office of Coastal Zone Management, The First Five Years of Coastal Zone Management, 13. 6. Coastal Zone Management Act, § 305(b), United States Code 16 (1978 Supp.: § 1454(b). 7. Ibid., §§304(1) and 304(2). 8. Ibid., §304(1). 9. U.S. Department of General Services, Code of Federal Regulations 15, §§ 923.31(a), 923.31(b), and 923.31(a)(8). 10. Ibid., §§ 923.11(b) and 923.11(c); Coastal Zone Management Act, § 305(b)(2), United States Code 16 (1978 Supp.): § 1454. 11. Hawaii Revised Statutes, § 205A-1(2) (1979 Supplement). John Craven, Director of the Law of the Sea Institute at the University of Hawaii, delights in challenging this assertion by taking students to where the seaward boundary is supposed to be and directing them to tell him when they see the boundary line pass below the boat. 12. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement. 13. Hawaii Revised Statutes, § 205A-2(b) (1976). 14. Ibid., §205A-2(c) (1976). 15. Code of Federal Regulations 15, § 923.21(b)(l)(i). 16. Ibid., §§923.24 and 923.25. 17. Hawaii Revised Statutes, § 205A-1(7) (1979 Supplement). 18. Ibid., §§ 205A-23(a) and 205A-23(b) (1979 Supplement). The county permit granting authority for Kauai, Maui, and Hawaii is their respective planning commission. The county permit granting authority for the City and County of Honolulu is the city council. 19. For example, Just v. Marinette County, 201 N.W.2d 761 (1972) upholding Wisconsin's shoreland protection, zoning; Candlestick Properties v. San Francisco BCDC 89 Cal. Reptr. 897 (1970) upholding California's Bay Area

i98

Notes to Chapter 7

Conservation and Development Commission. See cases collected in Fred P. Bosselman, David L. Callies, and John Banta, The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control, chaps. 1-4 and 9-11. 20. Coastal Zone Management Act, §§ 305(b)(4), 306(c)(7), and 306(d), United States Code 16 (1978 Supp.); §§ 1454(b)(4), 1455(c)(7), and 1455(d). Actually the secretary acts upon recommendation of the administrator of the National Oceanic and Atmospheric Administration (NOAA), which is responsible to him for CZMA programs and policy. 21. Ibid., § 306(e)(1). 22. Code of Federal Regulations 15, § 923.43(b)(2) (Comment). 23. Ibid., § 923.43(c). 24. State of Hawaii, Governor's Administrative Directive no. 78-3 (1978). 25. Hawaii Revised Statutes, §§ 205A-4(b), 205A-3(8), 205A-6(a), and 205A-6(c) (1979 Supplement). 26. State of Hawaii, "Inventory of Existing Control Mechanisms Related to Coastal Zone Management," Hawaii Coastal Zone Management Program Document Six: Legal Aspects of Hawaii's Coastal Zone Management Program 2 (1976): pages unnumbered; State of Hawaii, State of Hawaii Coastal Zone Management Program and Final Environmental Impact Statement, 86-92. 27. Hawaii Revised Statutes, § 205A-21—§ 205A-30 (1979 Supplement). 28. See discussion in State of Hawaii, Hawaii Coastal Zone Management Program Document Six: Legal Aspects of Hawaii's Coastal Zone Management Program, and in State of Hawaii, State of Hawaii Coastal Zone Management Program and Final Environmental Impact Statement. 29. Fred P. Bosselman, Duane A. Feuer, and Charles L. Siemon, The Permit Explosion. "Permit explosion" refers to the proliferation of land development permits required by increased state and federal land regulatory activities during the 1970s. 30. Hawaii Revised Statutes, § 205A-28 (1979 Supplement). 31. Ibid., § 205A-22(3)(A) (1979 Supplement). 32. Ibid., §§ 205A-22(3)(B) and 205A-22(3)(C) (1979 Supplement). 33. Ibid., §§ 205A-22(5), 205A-22(6), and205A-22(7) (1979Supplement). 34. Ibid., § 205A-26 (1979 Supplement). 35. County of Kauai, Environmental Shoreline Protection Rules and Regulations; County of Maui, Special Management Area Rules and Regulations, Article II; County of Hawaii, Rules and Regulations Relating to Environmental Shoreline Protection, Rules and Protection 9; City and County of Honolulu, Ordinance no. 4529, An Ordinance to Establish the Area and Rules and Regulations for an Interim Shoreline Protection District for Oahu (effective December 1, 1975). Note, however, that there is a current proposal in the City Council to transfer the permit granting function entirely to the Department of Land Utilization (Bill no. 13). Both prodevelopment and antidevelopment groups testified at a February 20, 1980 hearing urging that the council retain its powers to approve special management permits. Both sides want elected representatives to have the decision-making powers. Honolulu Advertiser, Feb. 21,1980. 36. City and County of Honolulu, Ordinance no. 4529, An Ordinance to Establish the Area and Rules and Regulations For An Interim Shoreline Protec-

Notes to Chapter 7

199

tion District for Oahu (as amended in 1977), §§ l - C - ( l ) , l-C-(7), and § 5-§ 10. 37. County of Maui, Planning Commission, Rules and Regulations of the Planning Commission of the County of Maui, Article II. 38. Ibid., §§2-9-5and2-11. 39. Ibid., § 2-11-4-c. 40. Ibid., § 2-14. 41. Hawaii 312 Evaluation Response (1980), at p. I-A. 42. County of Kauai, Special Management Area Rules and Regulations (1979), at §§ 1.4-A, 1.4-C, 1.4-1, 5.0, and 8-10. 43. Mahuiki v. Kauai Planning Commission, 65 Haw. 506, 654 P.2d 874 (1982). 44. County of Kauai, Special Management Area Rules and Regulations (1979), at §18. 45. Hawaii 312 Evaluation Response (1980), at 1-18. 46. County of Hawaii, Planning Commission, "Rule No. 9, Special Management Area Rules and Regulations of the County of Hawaii," Rules for the Transaction of Business, Planning Commission, §§ 9.6, 9.7, 9.10, and 9.17. 47. Ibid., §§9.18 and9.19. 48. Hawaii 312 Evaluation Response (1980), at 1-16. 49. Hawaii Revised Statutes, chap. 195(1976). 50. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, 65-66. 51. Hawaii 312 Evaluation Response (1980) at 12. 52. Hawaii Revised Statutes, chap. 190 (1976). 53. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, 66. 54. State of Hawaii, Department of Land and Natural Resources, Regulation no. 32, pt. II, § 1. 55. Coastal Zone Management Act, § 315, United States Code 16 (1978 Supplement): § 1461. 56. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, § II F. 57. Hawaii Revised Statutes, § 205-31 through § 205-37 (1976). 58. Hawaii 312 Evaluation Response (1980) at pp. 7 and 17. 59. Hawaii Revised Statutes, chap. 206E (1980 Supplement). 60. Coastal Zone Management Act, § 306(c)(8), United States Code 16 (1978 Supplement): § 1455(c)(8); Code of Federal Regulations 15, § 923.52(c)(1) (Table 1). 61. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, 129. 62. Coastal Zone Management Act, § 306, United States Code 16 (1978 Supplement): § 1455. 63. Code of Federal Regulations 15, §§ 923.57(b)(2)(ii) and923.57(b)(2)(v). 64. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, 139-140. 65. Ibid., 80.

200

Notes to Chapter 8

66. United States Code 16 (1976): § 1458. 67. See also Kem G. Lowry, "Policy-Relevant Assessment of Coastal Zone Management Programs," Coastal Zone Management Journal 7 (1980): 2. 68. Coastal Zone Management Act, §§ 307(c) and 307(d), United States Code 16 (1978 Supplement): §§ 1456(c) and 1456(d). 69. See, for example, Kleppe v. New Mexico, 426 U.S. 529 (1976) and Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (1979). 70. Coastal Zone Management Act, §§ 307(c) and 307(d), United States Code 16 (1978 Supplement): §§ 1456(c) and 1456(d). 71. Hawaii Revised Statutes, § 205A-3(3) (1979 Supplement). 72. State of Hawaii, State of Hawaii Coastal Zone Management and Final Environmental Impact Statement, 128. 73. Code of Federal Regulations 15, §§ 930.31(a), 930.31(c), 930.33(b), 930.33(c) and comment. 74. Ibid., §§ 930.32, 930.39(a), and 930.39(b). 75. See, ibid., § 930.39(c) and comment. 76. See, Hawaii Coastal Zone News 5 (1981) : 3 and 7. 77. Coastal Zone Management Act, § 307(C)(3)(A), United States Code 16 (1978 Supplement): § 1456(c)(3)(A). 78. Code of Federal Regulations 15, § 930.51(a). 79. Ibid., §930.52. 80. Ibid., §§ 930.21, 930.53(b). States were also urged by the regulations to monitor unlisted license and permit activities as well; see ibid., §§ 930.54(a), 930.57(a), 930.64, 930.65, and 930.120; Coastal Zone Management Act, § 307(C)(3)(A), United States Code 16 (1978 Supplement): § 1456(c)(3)(A). 81. Outer Continental Shelf Lands Act, United States Code 43 (1978): 1331 et seq. 82. Coastal Zone Management Act, § 307(C)(3)(A), United States Code 16 (1978 Supplement): § 1456(c)(3)(A). 83. Code of Federal Regulations 15, § 930.71 (comment). 84. For example, American Petroleum Institute v. Knecht, 609 F.2d 1306 (1979). 85. Secretary of the Interior v. California, 92 USLW 4063 (1984). 86. Coastal Zone Management Act, § 307(d), United States Code 16 (1978 Supplement): § 1456(d). 87. Code of Federal Regulations 15, §§ 930.91, 930.94(a), 930.95, 930.97, 930.99, 930.116, and 930.120. 88. See Lowry and Okamura, "Evaluation and Inter-Governmental Relations in CZM." 89. Texas Landowners Rights Association v. Harris, 453 F. Supp. 1025 (1978). Chapter 8

Flood Hazards and

Floodplains

1. Ian L. McHarg, Design With Nature, 16-17. 2. For more detailed information about riverine and coastal flood hazards on the islands of Hawaii, Maui, and Kauai, see U.S. Corps of Engineers, Depart-

Notes to Chapter

8

201

ment of the Army and Division of Water and Land Development, Hawaii Department of Land and Natural Resources, Flood Hazard Information, Island of Hawaii (1970); Flood Hazard Information, Island of Maui (1971); Flood Hazard Information, Island of Kauai (1973). For a history of tsunamis in Hawaii, see Pararas-Carayannis, Catalog of Tsunamis in the Hawaiian Islands (1969). 3. Scott Leithead, interview with author, Hilo, Hawaii, July 1, 1980. 4. Chief of Engineers, U.S. Army Engineer District, Pittsburgh, Pennsylvania, Flood-Proofing Regulations (1972), at 3-1. 5. Frank E. Maloney and Dennis C. Dambly, "The National Flood Insurance Program—A Model Ordinance for Implementation of Its Land Management Criteria," National Resources Journal 16 (1976): 665-679. 6. Chief of Engineers, Flood-Proofing Regulations, at 3-2. 7. See Alan L. Marcus and George H. Abrams, "Flood Insurance and Flood Plain Zoning as Compatible Components: A Multi-Alternative Approach to Flood Damage Reduction," Natural Resources Lawyer 7 (Fall 1974): 582; "Various Aspects of Flood Plain Zoning," North Dakota Law Review 55 (Note, 1979): 431. 8. For example, McCarthy v. City of Manhattan Beach, 264 P.2d 932 (1953); Turnpike Realty v. Town of Dedham, 284 N.E.2d 891 (1972); Morris County Land Co. v. Parsippony-Troy Hills Township, 193 A.2d 232 (1963); MacGibbon v. Board of Appeals of Duxbury, 255 N.E.2d 347 (1970); Dooley v. Town of Fairfield, 197 A.2d 770 (1964); see other cases collected in Fred P. Bosselman, David L. Callies, and John Banta, The Taking Issue, 147-168. Also on this "taking" issue generally, see The Taking Issue, where it is argued there is no basis for characterizing a regulation of land as a constitutionally protected taking. This point of view has been substantively weakened by strong dissent in the recent decided San Diego Gas and Electric Company v. City of San Diego, 450 U.S. 621 (1981). 9. For an extensive analysis, see the seminal article on this subject by Allison Dunham, "Flood Control Via the Police Power," University of Pennsylvania Law Review 107 (1959): 1098. 10. And "choose" it does, even if the "choice" is not to join up—as in FDPA, which often provides the only insurance available for flood-prone lands; lack of participation strips communities' eligibility for a host of other federal programs according to the federal courts in Texas Landowners Rights Association v. Harris, 453 F. Supp. 1025 (DDC 1978) aff'd. 598 F.2d 311 (D.C. Cir. 1979) cert, den'd. 100 S. Ct. 267 (1979). 11. U.S. Congress, Flood Control Act of 1936, United States Code 33 (1970, 1979 Supplement): § 701 et seq. 12. Maloney and Dambly, "The National Flood Insurance Program." 13. Ibid., 674. 14. United States Code 42 (1977): § 4106. 15. Honolulu Star-Bulletin, April 8,1970, A-20. 16. See U.S. Department of General Services, Code of Federal Regulations 44, § 60.25; Section IID2d, infra at 48.

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Notes to Chapter 8

17. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 46-11 (1976) and chap. 179 (1976). Authority to enact floodplain regulations for the counties of Hawaii, Kauai, and Maui comes from Hawaii Revises Statutes, § 62-34(18) (1976), which provides: "[The board of supervisors of each county shall have the following specific powers] To enact zoning ordinance providing that lands deemed subject to seasonal or periodic, or occasional flooding shall not be used for residence or other purposes in such a manner as to endanger the health or safety of the occupants thereof, as required by the Federal Flood Insurance Act of 1956 (chapter 1025, Public Law 1016)." Authority to enact floodplain regulations for the County of Honolulu comes from Hawaii Revised Statutes, § 70-100 (1976), which provides: "The city council may enact a zoning ordinance providing that lands deemed subject to seasonal, periodic, or occasional flooding shall not be used for residence or other purposes in such a manner as to endanger the health or safety of the occupants thereof, as required by the Federal Flood Insurance Act of 1956 (chapter 1025, Public Law 1016). The council may construct, acquire by gift, purchase, or the exercise of eminent domain, reconstruct, improve, better, extend, and maintain projects or undertakings for the control of and protection against floods and flood waters, including the power to drain and rehabilitate lands already flooded." 18. United States Code 42(1973): §4056 etseq. 19. U.S. Congress, Federal Disaster Protection Act, United States Code 42 (1977): § 4106(a); and Rutherford H. Piatt, "The National Flood Insurance Program: Some Midstream Perspectives," Journal of the American Institute of Planners 42 (July 1976): 304-305. 20. See Barry Lee Myers and Jeffery K. Rubin, "Complying with the Federal Disaster Protection Act," Real Estate Law Journal 7 (1978): 116, 123. 21. Code of Federal Regulations 44, § 59.1. After detailed rate-making has been completed in preparation of the FIRM, Zone A is usually refined into Zones A, AO, Al-99, V0, and Vl-30. 22. United States Code 42 (1977): §§ 4105(a) and 4105(b). 23. City and County of Honolulu, Department of Land Utilization, Summary of Flood Hazard Ordinances of the City and County of Honolulu. 24. United States Code 42 (1976): § 410(a)(2) and Code of Federal Regulations 44, § 64.1. 25. Code of Federal Regulations 44, §§59.1 and 53.3(a)(1). 26. Ibid., §54.1. Zone A Zone Al-99 Zone AO Zone Vl-30

Area of special flood hazard without water surface elevations determined. Area of special flood hazard with water surface elevations determined. Area of special flood hazards having shallow water depths and/or unpredictable flow paths between (1) and (3) feet. Area of special flood hazards, with velocity, that is inundated by tidal floods (coastal high hazard area).

Notes to Chapter 8 Zone VO ZoneB ZoneC Zone D Zone M ZoneN ZoneP Zone E

203

Area of special flood hazards having shallow water depths and/or unpredictable flow paths between (1) and (3) feet and with velocity. Area of moderate flood hazards. Such areas are 500-year floodplains in which there is a 0.2 percent chance of a flood occurring in any year. Area of minimal hazards. Area of undetermined but possible, flood hazards. Area of special mudslide hazards. Area of moderate mudslide hazards. Area of undetermined, but possible, mudslide hazards. Area of special flood-related erosion hazards.

27. Ibid., §9.1 28. U.S. Department of Housing and Urban Development (HUD), National Flood Insurance Program. 29. United States Code 42 (1977): § 4104(a)-4104(e); U.S. Department of General Services, Code of Federal Regulations 44, §§ 66.10 and 67.567.9. 30. HUD, National Flood Insurance Program. 31. Code of Federal Regulations 44, §§ 59.22(a)-59-22(d) and §§ 59.24(a)59.24(b). 32. United States Code 42 (1977): § 4022; U.S. Department of General Services, Code of Federal Regulations 44, §§ 60.1(b), 60.2, and 60.3. 33. Code of Federal Regulations 44, §§ 59.1 and 60.3. 34. Ibid., §§59.1 and60.3(B). 35. Ibid., § 60.3(C). 36. "Regulatory Floodway" is defined as "the channel or a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height." Ibid., §§59.1 and 60.3(D). 37. Ibid., § 60.3(e). 38. City and County of Honolulu, Ordinance no. 80-62, An Ordinance to Amend Article 11 of the Comprehensive Zoning Code Relating to Flood Hazard Districts; Ordinance no. 80-63, An Ordinance to Amend Chapter 16, Relating to the Building Code; Ordinance no. 64, An Ordinance to Amend Chapter 17, Relating to the Electrical Code; Ordinance no. 65, An Ordinance to Amend Chapter 19, Relating to the Plumbing Code. 39. See Code of Federal Regulations 44, § 60.25; Section IID2d. 40. City and County of Honolulu, Ordinance no. 80-62, An Ordinance to Amend Article 11 of the Comprehensive Zoning Code Relating to Flood Hazard Districts, §§ 21-11.3(a) and 21-11.5. 41. Ibid., §§21-11.4,21-11.6, 21-11.7, and 21-11.8. 42. Ibid., §§21-11.4, 21-11.10, and 21-11.11. 43. Hawaii Revised Statutes § 46-11 (1976). Under the emergency program Hawaii County is held only to emergency program standards, unless and until

204

Notes to Chapter 9

the regulatory floodway and coastal high hazard areas are identified, in which case the county must meet the requirements of the regular program. 44. County of Hawaii, Comprehensive Zoning Code, Article 17, §§ 2 and 3. 45. County of Hawaii, Ordinance no. 93, § 131. 46. Honolulu Advertiser, July 9, 1980, E-9; Hawaii Revised Statutes, § 4611 (1976). 47. County of Maui, Permanent Ordinances of Maui, Ordinance no. 716; Toshio Ishikawa, Planning Director, County of Maui: interview with author, Maui, February 1981; Personal Communication: Dale R. Peterson, Federal Emergency Management Agency, Honolulu, April 1981. 48. County of Maui, Permanent Ordinances of Maui, Ordinance no. 716, §§ 2 and 3. 49. Ibid., §§ 4A(a), 4A(b), 4A(c), 4B, and4C. 50. Hawaii Revised Statutes, §46-11 (1976). 51. County of Kauai, Ordinance no. 164, (1972), § 5.00. 52. Ibid., §5.081. 53. Ibid., §5.041. 54. Ibid., §§5.042and5.043. 55. Ibid., §5.031. 56. Ibid., §5.032. 57. See David L. Callies and J. F. Garner, "Planning Law in England and Wales and the United States," Anglo-American Law Review 1 (1972): 309. 58. City and County of Honolulu, Ordinance no. 80-62, An Ordinance to Amend Article 11 of the Conprehensive Zoning Code Relating to Flood Hazard Districts, § 21-11-13. 59. Ibid. 60. Ibid. 61. Code of Federal Regulations 44, § 60.6(a). 62. Ibid., §59.1. 63. City and County of Honolulu, Ordinance no. 80-62, An Ordinance to Amend Article 11 of the Comprehensive Zoning Code Relating to Flood Hazard Districts, § 21-11-15. 64. Ibid. 65. Federal Register 42 (1977): § 26951. 66. See Daniel R. Mandelker and Dawn Clark Netsch, State and Local Government in a Federal System, chap. 1. 67. United States v. Parish of St. Bernard, et al, Civ. No's. 81-1808 and 811810 (E.D. Louisiana, 1981). Chapter 9 NEPA and SEPA 1. For a breezy if selective account from the perspective of a true believer, see Rice Odell, The Environmental Awakening: The New Revolution to Protect the Earth. 2. For example, S. Seidel, Housing Costs and Government Regulations; Bernard J. Friedan, The Environmental Protection Hustle.

Notes to Chapter 9

205

3. U.S. Congress, National Environmental Policy Act of 1969, § 101(b), United States Code 42 (1969): §§ 4321-4370. 4. Ibid., § 102(c). 5. For example, Calvert Cliffs' Coordinating Committee, Inc., v. U.S. Atomic Energy Commission 449 F.2d 1109 (D.C. Cir. 1971); Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972); NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972). 6. United States Code 42 (1970): § 4332; State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 343 et seq. (1980 Supplement). For full discussions of NEPA and the plethora of cases spawned thereby, see William H. Rodgers, Handbook on Environmental Law; Daniel L. Mandelker, Environmental and Land Controls Legislation; Richard B. Stewart and James E. Krier, Environmental Law and Policy: Readings, Materials, and Notes, chap. 8. 7. For example, Public Service Co. of New Hampshire v. NRC, 582 F.2d 77 (1978); Polygon Corp. v. City of Seattle, 578 P.2d 1309 (1978). A result much desired by the CEQ. See U.S. Council on Environmental Quality, Environmental Quality Report (1978), 404-405, and Environmental Quality Report (1979), 583-585. 8. Matsumoto v. Brinegar, 568 F.2d 1289 (9th Cir., 1978), 1290. 9. Calvert Cliffs' Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971). 10. Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972). These have since been spelled out in some detail by the Council on Environmental Quality. See Environmental Quality Report (1978), 396-401, setting out and discussing the CEQ's rules, officially published in the Federal Register 43 (November 29, 1978): 55978-56007; U.S. Department of General Services, Code of Federal Regulations 40, §§ 1500-1508. 11. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971); Kalur v. Resor, 335 F. Supp. 1 (1971); Anaconda Company v. Ruckelshaus, 482 F.2d 1301 (10th Cir., 1973) F. Supp. 697 (1972); Scottsdale Mall v. State of Indiana, 549 F. 2d 484 (7th Cir. 1977). 12. NRDC v. Morton, 458 F.2d 827 (1972), limited subsequently by Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978). 13. City of Boston v. Volpe, 464 F.2d 254 (1972); Citizens Civic Ass'n. of Door County v. Coleman, 417 F. Supp. 975 (1976); Karlen v. Harris, 590 F.2d 39 (1978); Strycker's Bay Neighborhood Council Inc. v. Karlen, 444 U.S. 223 (1980); Wisconsin Heritages, Inc. v. Harris, 460 F. Supp. 1120 (1978); Sierra Club v. Hathaway, 579 F.2d 1162 (9th Cir. 1978). 14. Environmental Quality Report (1978), 407; Environmental Quality Report (1979), 588. 15. Federal Register 43 (effective July 1, 1979): § 55978 et seq.; Environmental Quality Report (1979); 577-581. 16. For example, Vermont and highways; Toronto and fixed guideways; see for example, Rice Center, Joint Development Report (September 1978). 17. Stop H-3 Ass'n. v. Volpe, 349 F. Supp. 1047 (1972); Stop H-3 Ass'n. v. Volpe, 353 F. Supp. 14 (1972); Stop H-3 Ass'n. v. Brinegar, 389 F. Supp. 1102

2O6

Notes to Chapter

9

(1974) rev'd. 533 F.2d 434; "EPA Accepts Final H-3 Impact Draft," Honolulu Advertiser, February 21, 1981. 18. Aluli v. Brown, 437 F. Supp. 602, 609 (1977); Executive Order 11593. 19. Environmental Quality Report (1979), 591-602. 20. Friends of Mammoth v. Board of Supervisors of Mono County, 502 P.2d 1049 (1972). 21. Polygon Corp. v. City of Seattle, 578 P.2d 1309 (1978), discussed in Environmental Quality Report (1978), 405. 22. See, David L. Callies, "The Quiet Revolution Revisited," Journal of the American Planning Association 46 (1980): 141. 23. Hawaii Revised Statutes, § 343 (1979 Supplement); see also Doak Cox, Peter J. Rappa, and Jacquelin N. Miller, The Hawaii State Environmental Impact System, Summary and Conclusion: Final Report to the Office of Environmental Quality Control, State of Hawaii. For administrative purposes see, Hawaii Revised Statutes, § 343-4 (1980 Supplement). 24. Hawaii Revised Statutes, §343-2(8) (1980 Supplement). 25. Ibid., §343-2(9). 26. See ibid., § 343-2(11): ". . . the sum of effects on the quality of the environment, including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State's environmental policies or long-term environmental goals as established by law, or adversely affect the economic or social welfare"; and § 343-5(a). 27. Ibid., § 205 et seq.; see chap. 2 for full discussion. 28. Pearl Ridge Estates Community Association v. Lear-Siegler, Inc., 65 Haw. 133, 648P.2d 702 (1982). 29. Hawaii Revised Statutes, § 205-32, 205-34 and 205-35 (1976). 30. See discussion in chap. 5. 31. See discussion in chaps. 2 and 3. 32. Hawaii Revised Statutes, § 343-5(a)(5) (1983 Supplement). 33. Ibid., §§ 343-2(2), 343-2(3), and343-2(4). 34. Personal communication: Richard Scudder, Environmental Quality Commission, Honolulu, January 1981. 35. Hawaii Revised Statutes, §§ 343-5(b) and 343-5(c) (1983 Supplement). 36. Ibid., § 343-5(c). 37. Ibid., §§ 343-5(d) and343-5(f). 38. Ibid., §343-2(1). 39. Mandelker, Environmental and Land Controls Legislation, 314. 40. Polygon Corporation v. City of Seattle, 578 P.2d 1309 (1978). 41. Hawaii Revised Statutes, §§ 343-4, 343-5 (1983 Supplement). 42. Ibid., § 3 4 3 - 5 . 43. Richard Scudder, Environmental Quality Commission, interview with Rosemary McShane, May 1980; personal communication: Richard Scudder and Donald Bremner, January 1981. 44. Hawaii Revised Statutes, § 341-3 and § 3 4 3 - 4 - 3 4 3 - 6 (1983 Supplement). 45. Rules and Regulations of the Environmental Quality Commission (1976, as amended 1980), § 1.81(a) and (b).

Notes to Chapter 10

207

46. Published by the Environmental Quality Commission in accordance with Hawaii Revised Statutes, § 343-3 (1983 Supplement). 47. Lifeof the Land v.Ariyoshi, 59 Haw. 156, 577 P.2d 1116 (1978). 48. Life of the Land v. Ariyoshi, 57 Haw. 249, 553 P.2d 464 (1976); McGlone v. Inaba, 64 Haw. 27, 636 P.2d 158 (1981); McGlone V. Wakayama (Civ. No. 46954, 1st Cir., 1975); Molokai Homesteaders Coop. Ass'n. v. Cobb, 63 Haw. 453, 629 P.2d 1134 (1981); Life of the Land v. Board of Land and Natural Resources (Civ. No. 3015, 2d Cir. 1978); Reppun v. Bd. of Water Supply, 65 Haw. 531, 656 P.2d 57 (1982); Zeigler v. Department of Land and Natural Resources (Civ. No. 55760, 1st Cir. 1980); Carroll v. City and County of Honolulu (Civ. No. 53941, 1st Cir. 1978); Emma Ah Ho v. Cobb, 62 Haw. 546, 617 P.2d 1208 (1980). Chapter 10

Clean Air

1. U.S. Congress, Clean Air Amendments of 1970, United States Code 42 (1970): § 1857 et seq. 2. See, Fred P. Bosselman, Duane A. Feurer, and David L. Callies, EPA Authority Affecting Land Use, 9-13 and 22-61; Donald G. Hagman, Public Planning and Control of Urban and Land Development: Cases and Materials (1976 Supplement), 277-278; Fred P. Bosselman, Duane A. Feurer, and Tobin Richter, Federal Land Use Regulation, 9. 3. Clean Air Act Amendments of 1977, United States Code 42 (1977): § 7401 et seq. 4. Richard B. Stewart and James E. Krier, Environmental Law and Policy: Readings, Materials and Notes, 339. 5. Ibid., 341-343; Bosselman, Feurer, and Callies, EPA Authority Affecting Land Use, 27-35. 6. Personal communication: Richard Liroff, Senior Associate, The Conservation Foundation, Washington, D.C., April 1981; Richard Liroff, Air Pollution Offsets: Trading, Selling, and Banking, 1-12; Gregory Wetstone, ed. Air and Water Pollution Control Law: 1980, 1-166. 7. Clean Air Act, § 102(b)(1). UnitedStates Code 42 (1978): § 7405(b)(1). 8. Ibid., §§ 108, 109(b)(1), and 109(b)(2), United States Code 42 (1979): §§ 7408, 7409(b)(1), and 7409(b)(2). 9. (1) Particulate matter; (2) sulfur oxides; (3) carbon monoxides; (4) nitrogen dioxide; (5) ozone; (6) hydrocarbons; (7) lead. U.S. Department of General Services, Code of Federal Regulations 40, pt. 50. 10. Clean Air Act, § 302(h), United States Code42 (1979): § 7602(h). 11. Ibid., § 110(a)(2)(A). UnitedStates Code42 (1979): § 7410(a)(2)(A). 12. Ibid. 13. See Daniel R. Mandelker, Environmental and Land Controls Legislation, 173; Hagman, Urban Planning and Land Development Control Law, 568. 14. "[P]reconstruction reviews of direct sources are to include consideration of energy, environmental and economic impacts and that the only land-use regulations which may result from implementation of this act are those which are

208

Notes to Chapter

10

needed to assure attainment and maintenance of ambient air quality standards and prevent significant deterioration of air quality." U.S. Congress, House Conference Committee, Congressional Report 95-564 to accompany H.R. 6161 (Clean Air Act Amendments of 1977), reprinted in United States Code Congressional and Administrative News (1977): 1502 and 1508. 15. State of Hawaii, Hawaii Revised Statutes (H.R.S.), §§ 342-1(2), 3421(3), and 342-3 (1980). 16. Clean Air Act, § 110(a)(2)(D), United States Code 42 (1979): § 7410 (a)(2)(D). 17. Code of Federal Regulations 40, pt. 60. 18. Elaine Moss, ed. Land Use Controls in the United States: A Handbook on the Legal Rights of Citizens, 43 and 44. 19. See, chaps. 6 and 7 for a full discussion of these programs. 20. Clean Air Act, § 110(a)(2)(D), United States Code 42 (1979): § 7410 (2)(D). 21. State of Hawaii, Department of Health, Public Health Regulations (as amended, 1976), vol. H., chap. 43 (Air Pollution Control), § 2. 22. Ibid., §§7,9, and 10. 23. Ibid., §9. 24. Code of Federal Regulations 40, § 51.12(3). There is a separate maintenance plan for lead; See § 51, subpart E. 25. Ibid., §51.54. 26. Ibid., § 51.55; other provisions (§§ 51.52, 51.53, 51.57, 51.58, and 51.60) deal with demonstration of adequacy, future legal authority, and intergovernmental cooperation. 27. Ibid., §52.631. 28. Stewart and Krier, Environmental Law and Policy, 501-504. 29. Clean Air Act, § 161, United States Code 42 (1979): § 7470, see, Craig L. Williams, "The Influence of Environmental Law on Nebraska Land Use," Nebraska Law Review 57 (1978): 730-762; Wetstone, Air and Water Pollution Law 24-26. 30. Clean Air Act, § 162(a), United States Code 42(1979): § 7472(a). 31. Ibid., §§ 162(b) and 164. 32. Liroff, Air Pollution Offsets, 4-12. 33. Clean Air Act, § 169(4), United States Code 42 (1979): § 7479(4). See Wetstone, Air and Water Pollution Law, 27-28. 34. Clean Air Act, § 165(a), United States Code 42 (1979): § 7475(a). 35. Ibid.; Liroff, Air Pollution Offsets, 4-12. 36. Clean Air Act, § 169(1), United States Code 42 (1979): § 7491(1). Section 169 reads: The term "major emitting facility" means any of the following stationary sources of air pollutants which emit, or have the potential to emit, one hundred tons per year or more of any air pollutant from the following types of stationary sources: fossil-fuel fired steam electric plants of more than two

Notes to Chapter 10

209

hundred and fifty million British thermal units per hour heat input, coal cleaning plants (thermal dryers), craft pulp mills, Portland Cement plants, primary zinc smelters, iron and steel mill plants, primary aluminum ore reduction plants, primary copper smelters, municipal incinerators capable of charging more than two hundred and fifty tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants, petroleum refineries, lime plants, phosphate rock processing plants, coke oven batteries, sulfur recovery plants, carbon black plants (furnace process), primary lead smelters, fuel conversion plants, sintering plants, secondary metal production facilities, chemical process plants, fossil-fuel boilers of more than two hundred and fifty million British thermal units per hour heat input, petroleum storage and transfer facilities with a capacity exceeding three hundred thousand barrels, taconite ore processing facilities, glass fiber processing plants, charcoal production facilities. Such term also includes any other source with the potential to emit two hundred and fifty tons per year or more of any air pollutant. This term shall not include new or modified facilities which are nonprofit health or education institutions which have been exempted by the State. 37. Ibid., §§ 169(a), 169(g)(6), and 169(b)(2)(A), United States Code 42 (1979): §§ 7491(a), 7491(g)(6), and 7491(b)(2)(A). 38. Code of Federal Regulations 40, §52.632. 39. Clean Air Act § 107, United States Code 42 (1979): § 7407. See Code of Federal Regulations 40, pt. 81, § 51.3. 40. William H. Rodgers, Handbook on Environmental Law, 236. 41. Code of Federal Regulations 40, §51.3. 42. Clean Air Act, §§ 108(b) and 172(a)(1), United States Code 42 (1979): §§ 7408(b) and 7502(a)(1). 43. Ibid., § 173, United States Code 42 (1979): § 7503. 44. Ibid., § 172(b)(2), United States Code 42 (1979): § 7502(b)(2). 45. Ralph E. Becker, "Land Use Implications of the Clean Air Act for the Mountain West: The Utah Example," Journal of Contemporary Law 5 (1978): 127. 46. Clean Air Act, § 175 through § 176; United States Code 42 (1979): § 7505 through § 7506. 47. See, for a recent and thorough discussion, Liroff, Air Pollution Offsets. 48. Clean Air Act, § 173(1)(A), United States Code 42 (1979): § 7503(1)(A). 49. Ibid., § 173(1)(B), and § 173(2) through § 173(4). 50. See Liroff, Air Pollution Offsets, 24-25. 51. Federal Register 44 (1979): 53081. 52. Personal communication: Jacqueline Parnell and George Fujimoto, State Department of Health, Honolulu, January 1981. 53. Ibid. 54. Editorial, "Kahe and Clean Air," Honolulu Advertiser, January 16, 1981. 55. Personal communication: Jacqueline Parnell and George Fujimoto, State Department of Health, Honolulu, January 1981.

210

Notes to Chapter

11

56. See, for some parameters of the debate, The Conservation Foundation, The Conservation Foundation Letter, February 1981; Urban Land Institute, Environmental Comment, May 1981. Chapter 11

Clean Water

1. U.S. Congress, Federal Water Pollution Control Act, United States Code 33 (1976): § 1251 et seq. 2. Elaine Moss, ed., Land Use Controls in the United States: A Handbook on the Legal Rights of Citizens, 72 et seq.; Fred P. Bosselman, Duane A. Feurer, and David L. Callies, EPA Authority Affecting Land Use, chap. 4; William H. Rodgers, Handbook on Environmental Law, chap. 5; Alexandra Dawson, Land Use Planning and the Law, 119. 3. Moss, Land Use Controls in the United States, chap. 5; Bosselman, Feurer, and Callies, EPA Authority Affecting Land Use, chap. 4; Daniel R. Mandelker, Environmental and Land Controls Legislation, 205 et seq.; Fred P. Bosselman, Duane A. Feurer, and Tobin M. Richter, Federal Land Use Regulation, 23 et seq.; Daniel R. Mandelker, Land Use Law, 326-327; William Goldfarb, "Water Quality Management Planning: The Fate of 208," Toledo Law Review 8 (1976): 105; "Sewers, Clean Water, and Planned Growth," Yale Law Journal 86 (Comment) (1977): 733. 4. Jacqueline Parnell, State of Hawaii Department of Health, interview with Francis Akamine, Honolulu, 1981. 5. Mandelker, Environmental and Land Controls Legislation, 53 (1978 Supplement) . 6. See Bosselman, Feurer, and Callies, EPA Authority Affecting Land Use, chap. 4; Mandelker, Environmental and Land Controls Legislation, 213 et seq. 7. Mandelker, Environmental and Land Controls Legislation, 213-217; Goldfarb, "Water Quality Management Planning," Toledo Law Review 8 (1976): 105. 8. Ibid. ; Bosselman, Feurer, and Callies, EPA Authority Affecting Land Use, chap. 4. 9. Clean Water Act, § 402, United States Code 33 (1982): § 1342. 10. Ibid., §§ 301, 302, 306, 307, 308, 402(a)(1), and 403, United States Code 33 (1982): §§ 1311,1312,1316,1317, 1318,1342(a)(1), and 1343. 11. Ibid., § 402(b), United States Code 33 (1982): § 1342(b). 12. Ibid., § 1317(b), United States Code 33 (1982): § 307(b). 13. Ibid., § 208, United States Code 33 (1982): § 1288. 14. Goldfarb, "Water Quality Management Planning," Toledo Law Review 8 (1976): 105. 15. Clean Water Act, § 208 et seq., United States Code 33 (1982): § 1288. 16. Michael Jungman, "Areawide Planning Under the Federal Water Pollution Control Act Amendment of 1972: Intergovernmental and Land Use Implications," Texas Law Review 54 (1976): 1045-1048. 17. Clean Water Act, §§ 208(a)(1), 208(a)(2), and 208(b)(1), United States Code33 (1982): §§ 1288(a)(1), 1288(a)(2), and 1288(b)(1). 18. Ibid., § 208(b)(2).

Notes to Chapter 11

211

19. State of Hawaii Department of Health and City and County of Honolulu, Water Quality Plan for the City and County of Honolulu, 2-1. 20. Ibid., making it the official water quality management plan for the designated areawide planning area; U.S. Department of General Services, Code of Federal Regulations 40, §§ 131.20(f)(l)(v) and 131.20(f)(l)(iii). 21. Jacqueline Parnell, State of Hawaii Department of Health, interview with Francis Akamine, Honolulu, March 1980, and July 1981. 22. Water Quality Plan for Honolulu, Preface. 23. Ibid., 1-5. 24. Ibid., 1-4. 25. See, for example, problems raised in Jungman, "Areawide Planning Under the Federal Water Pollution Control Act Amendment of 1972," Texas Law Review 54 (1976): 1060-1073. 26. Water Quality Plan for Honolulu, 8-3 through 8-5. —Mamala Bay (Oahu) from Diamond Head Light to Ahua Point. —Waikiki, from Diamond Head Light to Fort Armstrong. —Keehi, from Fort Armstrong to Ahua Point. Pearl Harbor (Oahu) from Ahua Point to Keahi Point. Kahului Bay (Maui) from Nehe Point to Hobron Point. Kaneohe Bay (Oahu) from Kuloa Point to Pyramid Rock. Hilo Bay (Hawaii) from Paukaa Point to Leleiwi Point. Port Allen (Kauai) from Puolo Point to Port Allen Pier. Hanamaulu Bay (Kauai) from North Point of Hanamaulu Bay to Ahukini Landing. Kaiaka Bay (Oahu) from Kaiaka Point to shoreline at foot of Kaimanu Place. Kahana Bay (Oahu) from Makalii Point to Mahie Point. South Molokai (Molokai) from Cape Halawa to Haleolono Harbor. 27. Ibid., 11-1 through 11-6. 28. Ibid., 11-2. The Water Quality Plan lists each discharge, and where it is located in attachments at 11-7 through 11-18. 29. Ibid., 12-1. 30. Ibid. 31. Code of Federal Regulations 40, pt. 130. 32. Water Quality Plan for Honolulu, 12-2. 33. Ibid., 12-2 through 12-3, and 12-5. 34. Ibid., 12-5, and 12-8 through 12-12; State of Hawaii Department of Health, Nonpoint Source Pollution in Hawaii: Assessments and Recommendations (Technical Report 2). 35. United States Code 33 (1976): § 1311. 36. Federal Register 42 (1977): 37122 through 37164. 37. For the current version, see Code of Federal Regulations 33, § 320.1 through §329.16. 38. TheDeltona Corp. v. U.S., no. 370-1376 (August 1981). 39. The "taking" issue—whether a regulation of land can be so onerous as to amount to a taking without compensation, which is prohibited by the Fifth

212

Notes to Chapter 11

Amendment to the federal constitution—is commonly raised in land use disputes since it was first established by the U.S. Supreme Court in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922). The issue is treated at length in Fred P. Bosselman, David L. Callies, and John Banta, The Taking Issue, and arose most recently in San Diego Gas b- Electric Co. v. San Diego, 450 U.S. 621 (1981). 40. Bert P. Pettinato, Division Counsel, and Robert G. Schmitt, Assistant Division Counsel, U.S. Dept. of the Army, Corps of Engineers, Pacific Ocean Division, interview with author, Honolulu, December 3, 1981. 41. U.S. Water Resources Council, Second National Assessment of the Nation's Water Resources, Part II, 51; U.S. National Water Commission, Water Policies for the Future, Final Report to the President and Congress, 230246. 42. Second National Assessment of the Nation's Water Resources, Part II, 38; The Conservation Foundation, State of the Environment, 1982, 110. 43. James T. B. Tripp and Adam B. Jaffe, "Preventing Groundwater Pollution: Tbwards a Coordinated Strategy to Protect Critical Recharge Zones," Harvard Environmental Law Review 3 (1979): 3-4. 44. The magnitude of the problem is described in U.S. Council on Environmental Quality, Environmental Quality 1980: The Eleventh Annual Report of the Council on Environmental Quality, 81-82, and in "Groundwater Supplies: Are They Imperiled?," Conservation Foundation Newsletter, June 1981. 45. U.S. Environmental Protection Agency, Report to Congress: Waste Disposal Practices and Their Effects on Ground Water, 362, 508. 46. Tripp and Jaffe, "Preventing Groundwater Pollution," 7. 47. Water Quality Plan for Honolulu, 8-1, 10-1, and 10-2. 48. County of Kauai, Kauai General Plan, at 3.8. 49. County of Maui, Maui County General Plan, Ordinance no. 1052, 3.83.10. 50. County of Hawaii, Hawaii: The General Plan, Ordinance no. 439, 3.83.14. 51. Tripp and Jaffe, "Preventing Groundwater Pollution," 12-13; Environmental Quality 1980: The Eleventh Annual Report of the Council on Environmental Quality, 98; Conservation Foundation Newsletter (June 1981): 4. 52. United States Code 42 (1980): § 300f through § 300j-10. 53. Environmental Quality 1980: The Eleventh Annual Report of the Council on Environmental Quality, 98; United States Code 42 (1980): § 300h-l; Tripp and Jaffe, "Preventing Groundwater Pollution," 15. The authority of EPA to regulate discharge into deep wells is dealt with in U.S. Steel Corp. v. Train, 556 F.2d 822 (1977). 54. Kathleen Armstrong, U.S. Environmental Protective Agency, speech, Honolulu, August 1980; Federal Register 45 (1980): 42472. 55. United States Code 42(1980): §300h(d)(2). 56. Federal Register 45 (1980): 42502. 57. Kathleen Armstrong, U.S. Environmental Protection Agency, speech, Honolulu, August 1980. 58. United States Code 42(1976): § 300(h)-3(e).

Notes to Chapter

12

213

59. Environmental Quality 1980: The Eleventh Annual Report of the Council on Environmental Quality, 98. 60. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 340E (1980 Supplement); State of Hawaii Department of Health, Public Health Regulations, chap. 49. 61. Public Health Regulations, chap. 49, §§ 29.2.C, 29.2.D, and 29.3. 62. Ibid., §§29.4, 30.1.1, and 30.2.2. 63. Federal Register 45 (1980): 42502, §§ 146.04 through 146.06. 64. Ibid. 65. United States Code 42 (1980): §§ 6901 through 6987 et seq.; Environmental Quality 1980: The Eleventh Annual Report of the Council on Environmental Quality, 98; Conservation Foundation, State of the Environment, 1982, 114. 66. Federal Register 43 (1978): 4954; Tripp and Jaffe, "Preventing Groundwater Pollution," 20-21. 67. United States Code 42 (1980): § 6924; Federal Register 43 (1978): 58946, 58952, 59000 through 59013. See Rodgers, Handbook on Environmental Law, 637-640. 68. Agreement Between the State of Hawaii and Region IX of the U.S. Environmental Protection Agency for the Fiscal Year 1981. 69. Ibid., 3-4. 70. Ibid., 4. 71. Ibid., 5. 72. Ibid., 7. 73. The Avayolles Sportsman's League, et al. v. Marsh, et al., Civ. no. 823231 (C.A. 5th Cir. 1982). Chapter 12

Public Lands

1. State of Hawaii Department of Planning and Economic Development, The State of Hawaii Data Book, 146. County and ownership is a relatively insignificant 0.3 percent, and so is not dealt with here. 2. Ibid. 3. Ibid., 150. Only some 190,000 acres were held by the Department of Hawaiian Home Lands as of June 1979 for the benefit of qualified native Hawaiians who received homestead leases. State of Hawaii, Hawaii Revised Statutes (H.R.S.), § 171-2 (1980), lists the exceptions, which include Hawaiian Homes Commission lands, streets and roads, and lands held by the Hawaii Housing Authority and the University of Hawaii. 4. Hawaii Revised Statutes, § 171-3. 5. Ibid., § 171-10, § 171-11, § 171-32, § 171-33, § 171-36(2), § 171-36(4), and § 171-36(5). Residential leases are restricted to fifty-five years and may be extended under certain conditions. 6. Ibid., § 171-41. 7. Ibid., § 171-42. 8. Ibid., and §171-41. 9. Ibid., § 171-45, § 171-46, § 171-48, and § 171-49.5.

214

Notes to Chapter 12

10. Ibid., § 171-70 through § 171-75, and § 171-79. 11. Ibid., § 205-1, et seq. and § 205-2. See chap. 2 for summary of the Land Use Commission's authority and duties. 12. Ann Louise Strong, Land Banking: European Reality, American Prospect, 1, 26. 13. State of Hawaii Data Book, 146. 14. See, for example, the Hawaii Military Installations map, January 1979, U.S. Army, 652nd Engineers Battalion; State of Hawaii, State of Hawaii Coastal Management Program and Final Environmental Impact Statement, chap. 3; Joseph L. Sax, "Helpless Giants: The National Parks and the Regulation of Private Lands," Michigan Law Review 75 (December 1976): 239-274; Strong, Land Banking. 15. See, for example, Benjamin H. Hibbard, A History of the Public Land Policies; Vernon R. Carstensen, The Public Lands: Studies in the History of the Public Domain; and Strong, Land Banking, 9-39. 16. Strong, Land Banking. 17. Ibid., 14-34. 18. See Alaska Native Claims Settlement Act, U.S. Statutes at Large 85 (1971) 688; United States Code 43 (1976): 1601; U.S. Joint Federal-State Land Use Planning Commission for Alaska, Developing Compatible Federal and State Land Planning Systems. For an excellent account of the people of Alaska on the subject of land—as well as that of the state—see the classic work by John McPhee, Coming Into the Country. 19. Joint Resolution of Annexation, U.S. Statutes at Large 30 (1898): 750. See Lorrin Andrews Thurston, A Handbook on the Annexation of Hawaii; and Jean Hobbs, Hawaii: A Pageant of the Soil, 18. 20. Hawaii Statehood Act, U.S. Statutes at Large 73 (1959): 4, United States Code 48 (1960): 1257. 21. U.S. Constitution, Article IV, § 3, cl. 2: "The Congress shall have the power to dispose of and make all needful rules and regulations respecting the Territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." 22. Joint Resolution of Annexation, U.S. Statutes at Large 30 (1898): 750; Hawaii Statehood Act, U.S. Statutes at Large 73 (1959): 4; see Gavan Daws, Shoal of Time: A History of the Hawaiian Islands, 391. 23. Joint Resolution of Annexation, U.S. Statutes at Large 30 (1898): 750. 24. Ibid. 25. Hawaii Statehood Act, U.S. Statutes at Large 73 (1959): 4. See, for example, U.S. Congress, Senate Committee on Interior and Insular Affairs, Hearings Before the Subcommittee on Territories and Insular Affairs, 83rd Cong., 1stSess., 1953, 731. 26. Admission Act of 1959, U.S. Statutes at Large 73 (1959): §§ 5(a) and 5(b). 27. Ibid., §§ 5(c), 5(d), 5(e), and 5(g). 28. Hibbard, History of Public Land Policies, 70-71.

Notes to Chapter

12

215

29. See, U.S. Congress, Senate Report 675, Land Conveyance—Hawaii (December 3,1963). 30. U.S. Congress, An Act to Revise the Procedures Established by the Hawaii Statehood Act for the Conveyance of Certain Lands to the State of Hawaii, § 1(a), U.S. Statutes at Large 77 (1963): 472. 31. Ibid., § 1(b). 32. Ibid. 33. Ibid., §2. 34. In the case of the Admission Act, it is the president; as amended by the Ceded Lands Act, it is the administrator of the General Services Administration (GS A). The president delegated his authority to declare lands surplus in Executive Order no. 10530, dated May 10, 1954, "Providing for the Performance of Certain Functions Vested in or Subject to Approval of the President," Federal Register 19 (1954): 10530, and in Executive Order no. 10960, dated August 21, 1961, "Amendment of Executive Order No. 10530, Providing for the Performance of Certain Functions Vested in or Subject to the Approval of the President," Federal Register 26 (1961): 10960. 35. Ceded Lands Act, § 1(a), U.S. Statutes at Large 77 (1963): 472. 36. Letter from Harold W. Seidman, Acting Assistant Director for Management and Organization, Bureau of the Budget, to the Hon. Alan Bibb, Chairman, Subcommittee on Public Lands, Committee on Interior and Insular Affairs, U.S. Senate, November 19, 1963. 37. U.S. Office of Management and Budget, "Procedures for Reports on Federal Property in Hawaii," Budget Circular No. A-52. 38. See Sheryl L. Nicholson, "Hawaii's Ceded Lands," University of Hawaii Law Review 3 (1981): 132-133. 39. Hawaii v. Gordon, 373 U.S. 57, 58 (1963). 40. By then Hawaii Congressman Hiram Fong. See Hibbard, History of Public Land Policies, 91. 41. U.S. President, Executive Order no. 11508, dated February 12, 1970, "Providing for the Identification of Unneeded Federal Real Property," Federal Register 35 (1970): 11508; Executive Order no. 11724, dated June 27, 1973, "Federal Property Council," Federal Register 38 (1973): 11724; Executive Order no. 11954, dated January 7, 1977, "Federal Property Review," Federal Register 42 (1977): 11954; U.S., Department of the Defense, Project FRESH— Facility Requirements Evaluation, State of Hawaii. 42. U.S., Department of the Defense, Military Property Requirements in Hawaii Study (MILPRO-HI). 43. Ibid., E-66 through E-67. 44. Jake Ours and Anthony Pace, General Services Administration, interview with author, San Francisco, July 30, 1980. 45. Nicholson, "Hawaii's Ceded Lands," 137-138. 46. Jack Kaguni, State of Hawaii Department of Land and Natural Resources, Land Management Division, interview with Sheryl Miyahira Nicholson, Honolulu, April 2, 1980. 47. Admission Act of 1959, United States Statutes at Large 73 (1959): § 5(f).

Notes to Chapter 13

2l6

48. See Hawaii Revised Statutes, chap. 171 (1980) and § 26-15 (1976). 49. State of Hawaii, Legislative Auditor, Financial Audit of the Department of Land and Natural Resources (report submitted to the governor), 31-37. In particular, the funds made their way into a special land and development fund, many purposes of which had marginal relevance to the public trust purposes set out in section 5(8) of the Admission Act. 50. Nicholson, "Hawaii's Ceded Lands," 139-140. 51. "Federal Land Sales Stir Up Turf Disputes," Conservation Foundation Letter (May 1982): 3. 52. Kleppe v. New Mexico, 426 U.S. 529 (1976). 53. Ventura County v. Gulf Oil Corp., 601 F.2d 1080 (1979). 54. Phil Mayer, "Native Claim Opener Set for Saturday," Honolulu Star-Bulletin, January 6, 1982. Chapter 13

Regulating Paradise

1. Ann Louise Strong, Land Banking: European Reality, American Prospect, 24-36; Benjamin H. Hibbard, A History of the Public Land Policies. 2. Frederick J. Turner, The Frontier in American History. 3. Fred P. Bosselman and David L. Callies, The Quiet Revolution in Land Use Control, 1-4; Fred P. Bosselman, David L. Callies, and John Banta, The Taking Issue: An Analysis of the Constitutional Limits of Land Use Control, chap. 6. 4. Bosselman, Callies, and Banta, The Taking Issue, chap. 8. 5. Richard F. Babcock and Duane A. Feurer, "Land as a Commodity Affected-with a Public Interest," Washington Law Review 52 (April 1977): 289; Donald G. Hagman and Dean J. Misczynski, Windfalls for Wipeouts: Land Value Capture and Compensation. 6. Bosselman and Callies, The Quiet Revolution, chap. 1. 7. The Barlow Report: Report of the Royal Commission on the Distribution of the Industrial Population, 1940; The Scott Report: Report of the Committee on Land Utilization in Rural Areas, 1942; The Uthwatt Report: Report of the Expert Committee on Compensation and Betterment, 1942. Town and County Planning Act, 1947 (England), which, in its latest (1971) version, is 41 Statute 1571 (c. 78). 8. Town and County Planning Act, 1971, at §§ 22 and 290. 9. Desmond Heap, An Outline of Planning Law, 88. 10. J. B. Cullingworth, Town and Country Planning in England and Wales, 15-33. 11. Ibid., 110-131. 12. John F. Garner and David L. Callies, "Planning Law in England and Wales and in the United States," Anglo-American Law Review 1 (1972): 305, 310-311; David L. Callies, "Land Use Controls: Of Enterprise Zones, Takings, Plans and Growth Controls," The Urban Lawyer 14 (1982): 798. 13. For example, Fasano v. Board of County Commissioners, 507 P.2d 1063 (1973). 14. Joseph DiMento, The Consistency Doctrine and the Limits of Planning.

Notes to Chapter 13

217

15. State of Hawaii, Hawaii Constitution, Article VII, § 2. 16. City of Lafayette v. Louisiana Power and Light Company, 435 U.S. 389 (1978). 17. Community Communications Inc. v. City of Boulder, 455 U.S. 40 (1982). 18. Nuuanu Neighborhood Association v. Department of Land Utilization, 630 P. 2d 107 (1981). 19. See Charles L. Siemon, Wendy V. Larsen, and Douglas R. Porter, Vested Rights: Balancing Public and Private Development Expectations; Donald G. Hagman, "Estoppel and Vesting in the Age of Multi-Use Permits," Southwestern Law Review 11 (1979): 545. 20. Graham Beach Partnership v. Save Nukolii Coalition, 65 Haw. 318, 653 P.2d 766 (1982); Life of the Land v. City Council, 61 Haw. 390, 606 P.2d 866 (1980); Life of the Land v. City Council, 60 Haw. 446, 592 P.2d 26 (1979); Allen v. City and County of Honolulu, 58 Haw. 432, 571 P.2d 328 (1977); Denning v. County of Maui, 52 Haw. 653, 485 P.2d 1048 (1971). See Benjamin A. Kudo, "Nukolii: Private Development Rights and the Public Interest," The Urban Lawyer 16 (1984): 279. 21. See David L. Callies, "Land Use: Herein of Vested Rights, Plans, and the Relationship of Planning and Controls," University of Hawaii Law Review 2 (1979): 168-181. 22. County of Kauai, Kauai County Charter, Article V. 23. Graham Beach Partnership v. Save Nukolii Coalition, 65 Haw. 318, 653 P. 2d 766(1982). 24. Ibid. 25. David L. Callies, "Nukolii Ruling Cleans Up Numerous Questions," Sunday Honolulu Star-Bulletin and Advertiser, October 17, 1982. 26. Avco Community Developers v. South Coast Regional Commission, 132 Cal Rptr. 386 (1976). 27. California, California Government Code, §§ 65864-65869.5. For discussion, see William J. Holliman, "Development Agreements and Vested Rights in California," The Urban Lawyer 13 (1980): 44. Hawaii rejected such a bill in 1982 and 1984. 28. For example, Windsor and Maidenhead Royal Borough Council v. Brandrose Investments, (1981) 1 W.L.R. 1083. 29. State of Hawaii, Hawaii Community Development Authority, Policies, Plans and Ordinances, J—38. 30. Francis Oda, President, American Institute of Architects-Hawaii Chapter, speech presented at Honolulu City Council Conference on Growth Management, Hawaiian Regent Hotel, Honolulu, October 1982; Fred P. Bosselman, Duane A. Feurer, and Charles L. Siemon, The Permit Explosion, chaps. 2, 3. 31. Bosselman, Feurer, and Siemon, Permit Explosion, chaps. 2, 3. 32. See, for example, Daley and Associates, State Land Use Management Study, report to the State of Hawaii, Department of Planning and Economic Development.

2l8

Notes to Chapter

13

33. Sir Desmond Heap is the sometime comptroller and solicitor for the City of London, editor of the Journal of Planning and Environmental Law and his own encyclopedia on planning law, author of Outline of Planning Law (nine editions), and the author of many land use regulatory systems. 34. A favorite characterization of the late Professor Donald Hagman of the UCLA Law School. See Fred P. Bosselman, Duane A. Feurer, and David L. Callies, EPA Authority Affecting Land Use. 35. P. Shabercoff, "Transferring Public Property to Private Control," Honolulu Star-Bulletin, July 13, 1982. 36. Richard F. Babcock and David L. Callies, "Ecology and Housing: Virtues in Conflict," in Modernizing Urban Land Policy, ed. Marion Clawson; Bernard J. Friedan, The Environmental Protection Hustle. 37. Richard F. Babcock, Billboards, Glass Houses, and the Law, and Other Land Use Fables, 149-150. 38. Jon Margolis, "Our Country 'Tis of Thee, Land of Ecology," Esquire Magazine 73 (March 1970): 124. 39. See Oahu Development Conference, Land Banking in Hawaii; for legal support generally, see David L. Callies, "Commonwealth of Puerto Rico v. Rosso: Land Banking and the Expanded Concept of Public Use," Michigan Journal of Law Reform 2 (1968): 199.

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Index

Act 100, 6, 7, 12, 16. See also State Plan Act 187, 6, 7, 10. See also Land Use Law Admiral Thomas condominium project, 20,36 Admission Act of 1959, and ceded land, 157, 159 Advisory Council on Historic Preservation, 76, 78 Affordable housing, 71, 173 Agriculture, future in Hawaii, 173 Ahupua'a, 1 Air Quality Maintenance Area (AQMA) plans, 134-135,136, 137 Ali'i, 1,163 Amortization of nonconformities: in counties, 23; Hawaii State enabling legislation, 25 Ancien regime of land use controls, 21 Areas of Particular Concern (APCs), 95-97 Babcock, Richard, 21, 60, 153 Board of the Department of Land and Natural Resources: conformance to State Plan, 16; conservation lands authority, 9; historic sites on state lands, 78; use and disposal of state lands, 153-155. See also Land Board British land use regulation, compared to Hawaii, 164 Ceded lands, 2, 4. See also Public lands, federal Ceded Lands Act of 1963,157 Clark, John, 87 Clean Air Act: Air Quality Maintenance Area (AQMA) plans, 134-135; ambient air standards (primary and secondary), 131; attainment plans for nonattainment areas, 136,138; history and general structure, 130; housing, limitation on, 61; land development, effect on in Hawaii, 139; preconstruction review, 133-134; prevention of significant deterioration (PSD), 135-136; purpose, 131;

state implementation plan (SIP), content, 131-132 Clean Water Act: coastal zone management, 144; discharge of dredge and fill materials, 145; Federal Disaster Protection Act, 107; Hawaii Environmental Impact Statement (HEIS) Law, 144; Hawaii Safe Drinking Water Act, 144; Hawaii State Plan, 144; history and overview, 141; housing, limitation on, 61; National Pollution Discharge Elimination System (NPDES), 142-145; nonpoint sources, 146; plans, 143-144, 208; plans, basin, 145; public health regulations, 144; Section 208,143-146; Section 404,145; structure and principal parts, 142 Coastal Zone Management Act (CZMA), federal: boundaries of zones, 88; facilities siting, 97; HCDA and Kakaako, 70; historic preservation, role in, 80; history, 87; implementation, 90; program, 88, 133; summarized, 87 Community Development Act of 1977, summarized, 62 Community Development Block Grants (CDBG), 61; regulations, 62 Comprehensive planning and land use controls, 24 Conformance: between county general plans and state functional plans, 18; between state and county plans, 14; generally, 6; Hawaii County plans, to zoning and subdivision regulations, 29; Honolulu, zoning and subdivision codes to development plans and development plans to State Plan, 16, 26; Kauai plan, to zoning and subdivision regulations, 29; Maui plans, to zoning and subdivision codes, 27; to State Plan, defined, 15 Corps of Engineers, U.S. Army, and Clean Water Act, 141,147,152 Council on Environmental Quality (CEQ), NEPA responsibilities, 122

242 Counties: as home-rule units of local government, 24; land use controls, 3, 4; zoning, 30. See also Hawaii County, Honolulu, City and County of, Kauai County, Maui County Department of General Planning, Honolulu. See Honolulu, City and County of Department of Health (DOH), State, 132, 139; and Clean Water Act, 144, 151-152 Department of Housing and Community Development (DHCD), State, housing responsibilities in Honolulu, 63 Department of Housing and Urban Development (HUD), federal role in housing, 61; standards and criteria, land use, 6 2 63 Department of Land and Natural Resources (DLNR): ceded lands, 160; coastal zone management (Hawaii), 96; conservation lands, 9; flood insurance program, 107; functional plan, role in, 17; HEIS, 125; historic preservation, 78-79; housing, public (veto), 64; State Plan, role, 16 Department of Land Utilization (DLU): Board of Appeals in, 38; CMZA/SMA responsibilities, 93; FDPA responsibilities, 112, 116; generally, 23; historic preservation, role in, 83; planned development role in, 35; special/conditional uses, 40; Special Design Districts, 35-36; subdivisions, 57; zoning changes, 37-39; zoning map preparation, 31 Department of Planning and Economic Development (DPED): coastal zone consistency responsibilities, 99; coastal zone SMA responsibilities, 90; functional plan, role in, 17; State Plan role, 13-14 Department of Transportation Act of 1966, as aid to historic preservation, 76 Environmental Council, Hawaii, 127,128 Environmental Impact Statement, as required by NEPA, 121-124 Environmental Protection Agency (EPA), federal: Clean Air Act, 130; Clean Water Act, 142; Safe Drinking Water Act of 1974,149 Estuarine Sanctuary Program, 96 Euclidean zoning, 30, 33, 34, 42 Federal Disaster Protection Act (FDPA), National Flood Insurance Program (NFIP): basic provisions, 107; county participation generally, 118; federal con-

Index sistency, 118; flood hazard, boundary map, 108; flood insurance rate map, 109, 111; floodplain, 105; floodway, 105; Hawaii County, 113; history and purpose, 106; Honolulu, 112; Kauai, 114; Maui, 114; requirements for local communities, 108; variances and exceptions to land use restrictions, 115 Flood hazard: as a limitation on housing, 61; described, 104; districts, 112-115; 100-year flood, 105; mitigation programs, 106, 107; regulations, 107-110 Flood Hazard Boundary Map (FHBM), 108, 109 Flood Insurance Rate Map (FIRM), 109110,111 Floodplain: defined, 105; management regulations, 110; zoning, 105, 106 Floodplain and Tsunami Inundation Area Ordinance, 114 Floodway, defined, 105 Functional plans, state: conformance of state programs to, 15; county plans, relation to, 14; historic preservation, 82; history and preparation, 17; number required, 16; passage, by concurrent resolution, 19, 20; requirements, 17; State Plan, relation to, 14 General plans, county: Hawaii, 29; Honolulu, 26; Kauai, 28-29; Maui, 27, 28 General Services Administration, U.S., role in ceded lands in Hawaii, 157 Great Mahele, 1, 2 Groundwater pollution in Hawaii, 148149,150-151 Hagman, Donald G . , 54, 109, 141 Hawaii Administrative Procedures Act (HAPA), 11; applied to Honolulu CZC special uses, 34 Hawaii Coastal Zone Management Act (HCZMA): areas of particular concern (APCs), 89, 95; consistency, 99-102; estuarine sanctuaries, 96; federal assistance to state and local government, 102; Hawaii Community Development Authority, 97; implementation, program, 91; natural area reserve system, 96; networking, 91; objectives and policies, 89; program, generally, 88-92; shoreline setback areas, 96; special management areas (SMAs), 89, 9 2 - 9 3 Hawaii Community Development Authority (HCDA), 67-70, 72; Coastal Zone Management Act, relation to, 97; his-

Index tory, 67; Kakaako development, area and plans, 67-70; legislative authority, 67-68. See also Kakaako Hawaii County: districts, 50-51; EIS, 52; FDPA, 113; flood zones, 113; general plan, 29; HCZMA/SMA duties, 93, 95; HHA activities, 63; historic preservation, 84; Housing Agency, 63; planned development, 51; plans, 29; subdivision code requirements, 59; variances, 52; zoning, 50-52 Hawaii Environmental Impact Statement (HEIS), 12; county general plans, 126; Department of Land and Natural Resources, 125; environmental assessment, 126; Environmental Council, 127; Hawaii Register/Historic Places, 125; HCZMA, relation to, 93; historic preservation, 80; history and structure, 125; Land Use Commission, 12, 125; Land Use Law, 125; National Historic Preservation Act, 125; Office of Environmental Quality Control (OEQC), 127 Hawaii Housing Authority, 63, 77; agricultural and conservation zone (state), power to develop housing in, 64; Hawaii County, activities, 63; housing, federal, relation to, 60; statutory exemptions from local land use, 64; structure and responsibilities, 64 Hawaii Land Use Law. See Act 187, Land Use Law Hawaii Register of Historic Places; duties, function, and listing criteria, 78; relationship to HEIS, 125 Hawaii Safe Drinking Water Act of 1976, 150 Hawaii State Plan. See State Plan Hawaii State zoning enabling legislation, 24 Hawaii statutory requirements for subdivisions, 56 Heap, Desmond, 171 Historic, cultural, scenic districts, (HCSD), 36, 38, 82-83 Historic preservation: Alexander Young Building, 79; county rules, 82; CZMA and functional plan, state, 82; DLNR, 78-79; elements, 73; Hawaii Constitution mentions, 77; Hawaii County, 84; HEIS, 80; housing, 61, 63; HSCDs (Honolulu), 82-83; Kauai, 83; Land Use Commission, 80; Land Use Law, 80; Maui, 85; on private lands, 78-80; on public lands, 78; Royal Hawaiian Hotel,

243 79; State Advisory Council on Historic Preservation, 78; State Plan, 81; taxes, 80 Home rule, 24 Homesteading, 2 Honolulu, City and County of: charter, 16, 26, 37; council, rezoning responsibilities, 27, 38, 39, 40; Department of General Planning (DPG), 38; districts, 3031; FDPA, 106-110; flood hazard regulations in CZC, 112; general plan, 26; HCZMA/SMA permits and responsibilities, 93; historic preservation, 82-83; housing programs, 63; subdivision code requirements, 56, 57; variances, 41; zoning, 23, 26-27, 30-42. See also Honolulu Comprehensive Zoning Code (CZC), Zoning Board of Appeals Honolulu Comprehensive Zoning Code (CZC), 36-42, 85; amendment hearings, 39; conditional zoning, 40; definitions, 42; Development Conformance Certificate, 83; districts, 30-31; flood hazard districts, 38; floor area ratio (FAR), 33; interim development control districts (IDCs), 36; Kakaako, 67-71; map preparation, 31; nonconformities, 41; performance standards, defined, 33; Plan Commission, 35, 38; planned development, 34, 35, 40; Special Design Districts (SDD), 35, 38, 83; special districts, 33; variances, 41 Housing Assistance Plan (HAP), 61, 62 Housing Assistance Program, 61 Housing programs (federal), history and goals, 61 Interim development control districts (IDCs), 36 Kakaako, 36, 67-70; Community Development District, 68, 69; Special Design District (KSDD), 70-71; use of interim development controls in, 36, 70 Kamehameha I, 2,163 Kauai County: agricultural parks, 49; charter, 28, 29; Comprehensive Zoning Ordinance (CZO), 46-47; districts, 46, 48-49; FDPA, flood hazard regulations in, 109, 114; HCZMA/SMA permits and responsibilities, 93, 94; historic preservation, 83-84; general plan, 28-29, 94; Plan Commission, 49-50; subdivision code requirements, 29, 58; variances, 49; zoning, 46-50 Kauai County Public Housing Agency,

244 responsibilities for county housing on Kauai, 64 Konohiki, 1 Land banking, 174 Land Board, 9, 78, 79, 80,125, 128, 153155, 166. See also Board of the Department of Land and Natural Resources Land Reform Act: eminent domain and public purpose, 65-67; summarized, 65; upheld, U.S. Supreme Court, 66, 67 Lands, Crown, 2 Land Use Commission: boundary amendments, 10-11, 16, 166; conformance to State Plan, 16; contested cases, 12; court challenges, 10; district classifications, 7 10, 8; Hawaii Administration Procedure Act (HAPA), applied to procedures of, 11; HEIS responsibilities, 125; historic preservation role, 80; membership and duties, 10; permit simplification, 170; public housing veto power, 64; role in shoreline setbacks, 96, 125; special permits in rural district, 10; special uses in agricultural districts, 8; standards for district classification, 7, 8, 9 Land Use Law, 2-3, 4; agricultural district, 8; amendment of standards for boundary amendment applications, 12; conservation district, 9; district classifications, 7; HEIS, 125; history, 6-7; rural district, 9; urban district, 7 Life of the Land, 36-37 Marine Life Conservation District, 96 Maui County: charter, 27, 28; community plans, 27, 28; districts, 43-44; FDPA, flood hazard regulations in, 109,114; HCZMA/SMA permits and responsibilities, 93; historic preservation, 85-86; Plan Commission, 44, 45; planned development, 43; planning director, 45; subdivision code requirements, 28, 58; variances, 44; zoning, 42-45; Zoning Board of Adjustment and Appeals, 44, 45,58 National Environmental Policy Act (NEPA): Council on Environmental Quality (CEQ), 122; court interpretations, importance of, 122; EIS preparation, 122; EIS requirements, 121; Hawaii, 123; HCZMA, relation to, 95, 97; historic preservation, 75; history and purpose, 120-121; housing and housing assistance, relations to, 61, 63; Kahoo-

Index lawe, 124; Stop H-3 Association, 123124 National Historic Preservation Act (NHPA), 75; federal housing assistance, relation to, 63; HEIS, 125; Kahoolawe, 76; Stop H-3 case, 76; tax aspects, 75. See also Historic preservation National Register of Historic Places, 74, 75; criteria for listing, 75; housing assistance, relations to, 63; Kahoolawe, 77; National Trust, 75 National Trust for Historic Preservation, 75 Native Hawaiian Study Commission, 162 Natural Area Reserve System Commission, 78, 96 Nukolii, vested rights, 37,168-169 Office of Environmental Quality Control and HEIS, 126,127 Office of Hawaiian Affairs (OHA) and ceded lands, 160-161 Ohana zoning, 25, 71, 72 Overlay zones, 35, 36,114; districts, 49, 112 Penn Central Transportation Co. v. City of N.Y., 74 Plan Commissions: makeup and duties, 23, 38; master plans, 24; rezoning, 37 Plats, 54, 56 Prevention of significant deterioration (PSD), 135-136 Public lands, federal: Hawaii, ceded lands, 156-162; ownership patterns in Hawaii and U.S., 153,155; policy toward disposal, 156,158-160; state/local land use controls thereon, 161; "surplus" property, 158-162 Public lands, Hawaii: private use, role of the Department of Land and Natural Resources (DLNR), 153-154,160 "Race of diligence," 36 Referendums, 36-37; applicable to local zoning amendments, 40,168-169 Resource Conservation and Recovery Act (RCRA), 150-151 Secretary of the Interior v. California, 102 Special Design Districts (SDD), Honolulu CZC, 35,38, 83 Special Management Area (SMA), 92-95; and permit simplification, 170 Standard City Planning Enabling Act, 24 Standard Zoning Enabling Act, 22, 24 State Housing Plan, 71

Index State Implementation Plan (SIP), under Clean Air Act, 130, 131-132, 135, 136, 137 State Plan (Act 100), 10; conformance, 15; county plans, 14, 16; functional plan requirements, 18; historic preservation, 81; history and structure, 12, 13; planning and implementation, 14; policy council, 14; priority guidelines, 14; programs, 14, 15 Stop H-3 Association v. Coleman, 76 Subdivisions; approval procedures, 56; design standards, 55; development code, 55; final plat of, 56; history, 54; reservation and dedication requirements, 55 "Taking" issue, 21 Town v. Land Use Commission, 10-11 Turner, Frederick Jackson, 163 Variances. See Hawaii County, Honolulu, City and County of, Kauai County, Maui County Vested rights: defined, 168; developers'

245 agreements, 169; Honolulu, 36; Nukolii, 168-169 Water pollution, 148, 150; Safe Drinking Water Act of 1974, 149; underground drinking water sources (UDWSs), 149. See also Clean Water Act Water Pollution Control Act, as amended by the Clean Water Act of 1977, 141 Zoning Board of Appeals (ZBA), Honolulu, 37, 38, 40, 41. See also Honolulu Comprehensive Zoning Code Zoning, local: amendments, text, and map, 23; Board of Appeals or Adjustment, 23; conditional, legality in Hawaii, 47; county charter provisions, 25; cumulative, 30, 31; districts (use), 22; exceptions, 24; history, 21; map, 22; nonconformities, 23; ohana, 25; text, 22; uses (accessory, conditional, permitted, special), 22-23; variances, 24. See also Hawaii County, zoning; Honolulu, City and County of, zoning; Kauai County, zoning; Maui County, zoning

About the Author

David L. Callies teaches land use, real property, and local government law at the University of Hawaii. He received his first law degree from the University of Michigan and his second from the University of Nottingham in England, where he studied British land use law. A present and past consultant to local, state, and federal agencies as well a past counsel to a multinational land development company, Callies writes an occasional "On Planning" column for the Honolulu Sunday AdvertiserStar-Bulletin and is active in the American Bar Association's Section on Urban, State, and Local Government, upon whose governing council he sits. Co-author (with Fred P. Bosselman) of The Quiet Revolution in Land Use Control, in which Hawaii figures prominently, and (with Bosselman and John Banta) The Taking Issue, he has written more than thirty articles on land use. He is co-author (with Robert Freilich) of a land use casebook (forthcoming).

Production Notes This book was designed by Roger Eggers. Composition and paging were done on the Quadex Composing System and typesetting on the Compugraphic 8400 by the design and production staff of University of Hawaii Press. The text and display typeface is Compugraphic Caledonia. Offset presswork and binding were done by Malloy Lithographing, Inc. Text paper is Glatfelter Offset Vellum, basis 50.