COM 0762.007 2004-2006 - Laserfiche WebLink

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its agencies to preserve and protect traditional and customary native Hawaiian rights and confers upon the State and its agencies the `power to protect these rights and to prevent any interference with the exercise of these rights.'" Ka Pa'akai, 94 Hawaii at 45, 7 P.3d 1082 . [T]he state is obligated to protect customary and traditional rights to the extent feasible under the Hawaii Constitution and relevant statutes. PASH, 79 Hawaii at 450 n. 43, 903 P.2d at 1271 n.43 (emphasis added). As such, state agencies such as the LUC may not act without independently considering the effect of their actions on Hawaiian traditions and practices. Id. at 46, 7 P.3d at 1083. This obligation is further re-enforced by HRS § 205A- 4(a) which requires that the Planning Director give full consideration of cultural and historic values when implementing the objectives and policies of the coastal zone management program. See also, HRS 205A-5(b) ("all agencies shall enforce the objectives and policies of this chapter") and 205A-2(b)(2) ("protect . . . those. . . resources . . . that are significant in Hawaiian . . , culture"). In order to protect these rights, at a minimum, agencies are required to: (1) identify the extent to which these rights are exercised; (2) determine the extent to which these rights will be affected; and (3) determine the feasibility of protecting these rights. Ka Pa-akai, 94 Hawaii 31, 7 P.3d 1068. "Indeed the promise of preserving and protecting customary and traditional rights would be illusory absent findings on the extent of their exercise, their impairment, and the feasibility of their protection." Id. at 50, 7 P.3d 1087. The planning director argues there is no duty for the government to investigate and protect native Hawaiian rights when approving the subdivision of property for development because the need to investigate and protect native Hawaiian rights only arises when an agency is acting in a discretionary fashion. The PASH and Ka Pa'akai decisions, as well as the constitutional mandate, are broad, however. There is no basis for narrowing their application to only those occasions when government is acting in a discretionary manner. Moreover, the Subdivision Control Code vests the Planning Director with significant discretionary authority in decisionmaking: HCC § 23-7 ("may require necessary improvements to further the public welfare and safety"); HCC § 23-13 ("may make exceptions to this chapter"); HCC § 23-26 ("Outstanding natural or cultural features . . . shall be preserved as provided by the director"); HOC § 23-30 ("Streets or parkways parallel to water courses may be required"); HCC § 23-31 ("may require creation of a pedestrian way"); HCC § 23-32 ("The lot size, width, shape, and orientation, and the minimum building setback lines shall be appropriate for the location of the subdivision, the type of development and uses contemplated and in conformance with the provisions of chapter 25, Zoning Code"); HCC § 23-34 ("may indicate the side or sides of any lot from which driveway access shall be permitted or prohibited"); HCC § 23-36 ("A planting screen easement . . may be required"); HCC § 23-38 ("may require that the blocks shall be of such size and shape"); HCC § 23-51 ("may require marginal access streets, reverse frontage lots with suitable depth, screen planting. . HCC § 23-55 ("If in the opinion of the director"); HCC § 23-64 ("When required by the director"). Subdivision approvals are discretionary decisions. If no effort is made to investigate and protect native Hawaiian practices on land proposed for agricultural subdivisions outside of the SMA, traditional and cultural practices would be unprotected on approximately forty percent of the land on the Big Island. 4. The Subdivision Control Code should implement the Land Use Law to ensure adequate public services are provided to residential developments. In order to ensure that development occurs in areas where government services (fire, police, schools etc.) are already provided, the State Land Use Law prohibits residential development in agricultural areas. Proposals to develop in the agricultural district (over 15 acres) are supposed to go to the Land Use Commission where the project's impacts to state highways, native Hawaiian rights, natural resources, and other government services can be evaluated in an open forum. This process is subverted, however, when developers are allowed to subdivide land designated as "agriculture" for residential purposes. To ensure that taxpayers do not wind up subsidizing developers (by providing new government services to scattered development), it is essential that no subdivision of agricultural land be approved unless the application includes a farm plan to demonstrate that the subdivision is a genuine agricultural subdivision. If not, the proposal should go to the LUC for reclassification and the County Council for re-zoning. Public oversight by 3