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From: `COUnd! Testimony <munctltest€meny:!~co.fiavraii.hi.us~
ro: hawailmunty~~uncibmyahoaco~
Subject: FW: Support of BiII ISE
Date: Tue, 1 May 2007 SE;44: 16 -5000
From: Bob Hunter [mailto:robert.m.hunter@hawaiiantel.net]
Sew: Tuesday, May Oi, 2007 3:37 PM
To: counciftestjmony@co.hawari.hi.us; Hoffmann, Pete
Cc: Yagong, Dominic ;Ikeda, Donald ; Yoshrewto, J ; Higa, Stacy ; Naeole, Emig; Jacobson, Bob ;Ford,
Brenda ; Pilago, K. Angel ; cohmayor@co.hawaii.hi.us
Subject: Support of Bill 156
Councilmember Pete Hoffmann, Chair
Councihnember K. Angel Pilago, Vice Chair
Hawaii County Council
I strongly support Bill 156 concerning affordable housing.
If the ordinance allows applicants to request that they be exempted from the affordable
hn„sin~= requirement, the ordinance should set clear criteria for granting such exemptions.
Fnr ezaisn,lc-; hew would an applicant establish "lower demand" or "sufficient supply?"
How would lower demand or sufficient supply translate into "lesser requirements?" In the
tllaft Hawaii CUUiity li]1Nd~tiCZ uiuif}ai}Ce (i;ONy dti3u~}rtl), 5[7oC€ iL iusi€cu:as a:r l,.z :r_-
iii l.ii: eiS"a:il iii ii.:i:;tr:;uurreu ~iuiiiu~ ~u uteri uv::ty n}tpiiceru iiceicu ih~ ~atui:. i'[u~ appiua~n
is fair and has withstood legal challenges.
Also, what does the phrase "exempted State industrial Lands" mean? Under the
Memorar}dum of Understanding (see paragraph IV.FI hetwee}: Hawaii Coe€€itE~ err}v rlie
Derart,~,ent of Hawaiian Hoinc bands (l?HIII,1 and the staff me}nn exrrtaining it f;;cipi:~s
attached), UHHL may decide on how to use its lands, but once a use is established, the
R;iiiiP.Aii: '3iiiliC:'i i!i :i:C ;~%ii7i: fCi-iiiii::ii::ir c': :is irit i::r ii::l i:iilliC.i i.i i,ii; I3iirri ric: ._7:iii7i: ii
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mean DHHL lands. Also, how would an "unequal competitive sihrahon" be translated into M
a "lesser requirement?"
rJ ~
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Iti4; renr8r, it is difficult to understand how exemptions would be recessar3r :vhen, as the N
?Tani}ii}j' viriCt:sr Cxplafi}S in Cvi}}iii. 1trQ.11, it }S i}vt nCCC53ai
y' tv CriCi}}';t dCY~iL~i}'}inCniS !i}
geo~aphical are:.s from the ordiua:}cc because the method calcu[at}on of the in-1}eu tee z° ~
ti?,l<es ware of geographic variations in medial} house prices and median incoi}}e levels and ~ ~
enSiire~ Thai aifnrdai~ie hnn.ino exactions fi-nm deg-einnerc ncenr where they are needed v
Realizing that "politics is the art of tl}e possible," 1 hope that any exemption procedure float
httn~lhes +tixx .y~p:€ vR€:nn Cnm!VnL~JhO:i'L~iI~C.'t)4X-1t1tJOYl~.~~Sn;,^i=~b!;,1 j~1u i~)uvi_1u~~7 vi_ 1 ~~>!JU /
Yahoo! Mail - hawaiicountycouncil~uyahoo.com Page 2 of 2
is included in the ordinance (to make it possible to get enough votes to pass) is easy for the
County housing agency (and the rest of us) to understand. The lawyers in this county
already have enough work.
I urge the council to pass Bill 156. Thank you for this opportunity to testify.
My name and address is:
Robert M. (Bob) Hunter, Ph.D., P.E.
65-1116 Hokuula Rd.
P.O. Box 2709
kamuela, HI 96743
te1808-885-4194
fax 808-885-4114
!1t X11 U ti C; 1)!)Btt IIL.111171
~11~...u 4C~1'r3t~u; ~ot7~
Attacfiments
hawaii_co_ordRnal_09_17_06.pdf (73kt _
memo_staff.pdf (-~9kj
memo_dhhl.pdf!318F;
hnn fSRR mail vahnacom/vm/ShowLetteflbox=Inbox&Msl;Id=4664 1987290_18420_... 5/1/2007
Chapter 36
IMPACT FEES
Section 36-1. Short title and applicability.
(a) This ordinance shall be known and cited as the "Impact Fee Ordinance," and is
referred to herein as "this chapter."
(b) The provisions of this chapter shall apply to all of the territory within Hawaii County.
Section 36-2. Intent.
(a) The intent of this chapter is to ensure that impact-generating development bears a
proportionate share of the cost of improvements to the County's major roadway,
park, fire/emergency medical service, police, solid waste and wastewater facilities; to
ensure that the proportionate share does not exceed the cost of providing facilities to
the development that paid the fee; and to ensure that funds collected from impact-
generating development are actually used to construct system improvements that
serve such development. It is further the intent of this chapter to use impact fees to
implement the County's General Plan.
(b) It is not the intent of this chapter to collect any money from any impact-generating
development in excess of the actual amount necessary to offset demands generated
by that development for improvements for which the fee was paid.
(c) It is the intent of this chapter to utilize other non-impact fee funds to offset the
impact on housing affordability.
Section 36-3. Findings.
The County Council of Hawaii County, Hawaii finds that:
(a) The protection of the health, safety, and general welfare of the citizens of the County
requires that the major roadway, park, fire/EMS, police, solid waste and wastewater
facilities of the County be expanded and improved to meet the demands of new
development.
(b) The creation of an equitable impact fee system would enable the County to impose a
more proportionate share of the costs of required improvements to the major
roadway, park, fire/EMS, police, solid waste and wastewater facilities on those
developments that create the need.
(c) The needs assessment study sets forth reasonable methodologies and analyses for
determining the impacts of various types of development on the County's major
roadway, park, fire/EMS, police, solid waste and wastewater facilities.
(d) The impact fees described in this chapter are based on the needs assessment study,
and do not exceed the costs of acquiring or constructing additional facilities or
equipment required to serve the development that will pay the fees.
(e) There is both a rational nexus and a rough proportionality between the development
impacts created by each type of new development covered by this chapter and the
impact fees that such development will be required to pay.
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
(f) This chapter creates a system by which impact fees paid by impact-generating
development will be used to expand the major roadway, park, fire/EMS, police, solid
waste and wastewater facilities, so that the development that pays each fee will
receive a corresponding benefit within a reasonable period of time after the fee is
paid.
Section 36-4. Definitions.
For the purpose of interpreting this chapter, certain words used herein are defined as
follows:
Applicant: The applicant for final subdivision approval, a building permit or a
connection to the wastewater system for which an impact fee is due pursuant to the
provisions of this chapter.
Equivalent Dwelling Unit (EDU): Represents the impact of a typical single-family
dwelling. Atypical single-family detached dwelling unit represents, on average, one
EDU. For the purpose of park and solid waste impact fees, a dwelling unit of another
housing type represents a fraction of an EDU, based on the ratio of the average
household size of the other housing type to the average household size of the typical
single-family detached unit. For the purpose of fire/EMS and police impact fees, a
dwelling unit of another housing type represents a fraction of an EDU, based on the
ratio of the functional population of the other housing type to the functional
population of the typical single-family detached unit.
Fire/EMS Facilities: Land, buildings, vehicles and capital equipment owned by the
County and used for providing fire and emergency medical services, including fire
stations, fire department administrative offices, training facilities, fire-fighting
apparatus and support vehicles, and fire-fighting equipment.
Fire/EMS System Improvements: Capital improvements that result in a net
expansion of the capacity of the fire/EMS facilities to serve new development.
Remodeling, replacement or maintenance of existing equipment or facilities do not
constitute fire/EMS system improvements, except to the extent that they have the
net effect of adding capacity. For example, half of the cost of tearing down a 5,000
square foot fire station and replacing it with a 10,000 square foot fire station could
reasonably be considered a system improvement.
Functional Population: The number of "full-time equivalent" people present at the
site of a land use.
General Plan: The comprehensive development plan that has been officially adopted
by the County Council to provide long-range development policies for the County.
Gross Floor Area: The total of the gross horizontal area of all floors, including usable
basements and cellars, below the roof and within the outer surface of the main walls
of principal or accessory buildings or the centerlines of a party wall separating such
buildings or portions thereof, or within lines drawn parallel to and two (2) feet within
the roof line of any building or portions thereof without walls, but excluding
unscreened residential porches or balconies, vehicle parking garages, accessory or
commercial vehicular parking areas and structures, and nonresidential arcades and
similar open areas are accessible to the general public, and are not designed or
used as sales, display, storage, service or production areas.
DRAFT ORDINANCE FOR COUNi'Y OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
2
Impact Fee Administrator: The County department director primarily responsible for
administering the provisions of this chapter, or his or her designee.
Impact Fees: The road, park, fire/EMS, police, solid waste and wastewater impact
fees.
Impact-Generating Development: Any land development designed or intended to
permit a use of the land that will increase the number of service units.
Impact-Generating Development, Commencement of.• For the purposes of roads,
parks, fire/EMS, police and solid waste impact fees, commencement occurs upon
securing final subdivision approval for a new single-family detached development, or
upon securing final plan approval or a building permit for single-family development
on existing lots of record or for other types of development. For the purposes of
wastewater impact fees, commencement occurs upon the purchase of a water meter
or, if no water meter is required, upon physical connection to the County's
wastewater line serving the property.
Major Roadway Facilities: Arterials and collectors, including State roads and Federal
highways, located within the County.
Major Roadway System Improvements: Improvements that expand the capacity of
the major roadway facilities, including but not limited to the acquisition of right-of-
way, construction of new roads, widening of existing roads, intersection
improvements, and installation of traffic signals. Lane reconstruction, sidewalk
construction, medians, landscaping, street lighting and other ancillary components of
acapacity-expanding road improvement shall not be considered system
improvements when not an integral part of acapacity-expanding improvement.
Needs Assessment Study: The Infrastructure and Public Facilities Needs
Assessment: Impact Fee Study prepared for Hawaii County by Duncan Associates in
August 2006, or a subsequent similar report.
Park Facilities: Land, buildings and improvements to County-owned or maintained
land used for recreational purposes, and recreational facilities and improvements
made or installed by the County on non-County property and available for public use.
Park System Improvements: Capital improvements that result in a net expansion of
the capacity of the park facilities to serve new development. Remodeling,
replacement or maintenance of existing equipment or facilities do not constitute park
system improvements.
Person: An individual, corporation, governmental agency or body, business trust,
estate, trust, partnership, association, two (2) or more persons having a joint or
common interest, or any other entity.
Police Facilities: Land, buildings, vehicles and capital equipment owned by the
County and used for providing police services, including police stations, police
department administrative offices, training facilities, patrol vehicles, and police
equipment.
Police System Improvements: Capital improvements that result in a net expansion
of the capacity of the police facilities to serve new development. Remodeling,
replacement or maintenance of existing equipment or facilities do not constitute
police system improvements, except to the extent that they have the net effect of
DRAFT ORDINANCE }•'OR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
3
adding capacity. For example, half of the cost of tearing down a 5,000 square foot
police station and replacing it with a 10,000 square foot police station could
reasonably be considered a system improvement.
Service Units: Roadway VMT, park EDUS, fire/EMS EDUS, police EDUS, solid waste
EDUS, or wastewater SFEs.
Single-Family Equivalent (SFE): The wastewater demand associated with a typical
single-family detached unit.
Solid Waste Facilities: land, buildings, vehicles and capital equipment owned by the
County and used for providing solid waste services to self-haul residential customers,
including landfill improvements and equipment, transfer stations and equipment, and
vehicles.
Solid Waste System Improvements: Capital improvements that result in a net
expansion of the capacity of the solid waste facilities to serve new development.
Remodeling, replacement or maintenance of existing equipment or facilities do not
constitute solid waste system improvements, except to the extent that they have the
net effect of adding capacity.
System Improvements: Major roadway system improvements, park system
improvements fire/EMS system improvements, police system improvements, solid
waste system improvements or wastewater system improvements. System
improvements do not include land dedications or capital improvements for the
exclusive use or benefit of a particular development.
Vehicle-Miles of Travel (VMT): The number of vehicles traveling during a given time
period times the distance in miles that these vehicles travel.
Vehicle-Miles of Capacity (VMC): The maximum number of vehicles that can be
accommodated on a roadway times the length of the roadway in miles.
Wastewater Facilities: The land and improvements associated with the wastewater
plant, including effluent outiall to receiving waters, and the wastewater collection
system, excluding portions of the collection system typically installed by developers.
Wastewater System Improvements: Capital improvements that result in a net
expansion of the capacity of the wastewater facilities to serve new development.
Gravity lines less than 12 inches in diameter are not considered system
improvements. Remodeling, replacement or maintenance of existing equipment or
facilities do not constitute wastewater system improvements, except to the extent
that they add capacity. For example, half of the cost of constructing a new 6 million
gallon per day treatment plant that will replace an existing 3 million gallon per day
treatment plant could reasonably be considered a wastewater system improvement.
Section 36-5. Time of fee obligation and payment.
(a) On and after the effective date of this chapter, any person who causes the
commencement of impact-generating development shall be obligated at that time to
pay impact fees, pursuant to the terms of this chapter. The obligation to pay the
impact fees shall run with the land.
(b) The impact fees for roads, parks, fire/EMS, police and solid waste shall be
determined and paid at the time of final plan approval or issuance of a building
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
4
permit for the development, provided that for new single-family lots subdivided after
the effective date of this chapter, such fees shall be paid at time of final subdivision
approval. Wastewater impact fees shall be determined and paid at time of the
purchase of a water meter for the development, unless no water meter is required,
in which case the fees shall be paid prior to physical connection to the County's
wastewater line serving the property.
Section 36-6. Exemptions.
The following shall be exempt from the terms of this chapter. An exemption must be
claimed at the time of application for a building permit.
(a) Asingle-family detached unit on a lot for which impact fees had been paid at time of
final subdivision approval shall be exempt from any increase in impact fees of the
types already paid, but shall be subject to any new impact fees for additional
facilities.
(b) Alterations of an existing single-family detached dwelling unit where no additional
dwelling units are created.
(c) Replacement of a destroyed, partially destroyed or moved residential building or
structure with a new building or structure of the same use, and with the same
number of dwelling units and with a total gross floor area that does not exceed the
size of the original building or structure.
(d) Replacement of destroyed, partially destroyed or moved nonresidential building or
structure with a new building or structure of the same use and not exceeding the
gross floor area of the original building or structure.
(e) Any development for which a completed application for a building permit was
submitted prior to the effective date of this chapter, provided that the construction
proceeds according to the provisions of the permit and the permit does not expire
prior to the completion of the construction.
(f) The impact fee administrator shall determine the validity of any claim for exemption
pursuant to the criteria set forth in this chapter.
(g) In order to promote the economic development of the County or the public health,
safety, and general welfare of its residents, the County Council may agree to pay
some or all of the impact fees imposed on a proposed development or
redevelopment from other funds of the County that are not restricted to other uses.
Any such decision to pay impact fees on behalf of an applicant shall be at the
discretion of the County Council and shall be made pursuant to goals and objectives
articulated by the County Council.
Section 36-7. Fee determination.
(a) Any person who commences an impact-generating development, except those
exempted or preparing an independent fee calculation study, shall pay impact fees in
accordance with the following fee schedule. [The County Council could choose to
charge any percentage less than 100 percent of each type of fee.]
DRAFT ORDINANCE FOR COUNTY OF HAWAII PRF,PARID BY DUNCAN ASSOCIATES 8/9/06
5
Fire/ Waste- Solid
Land Use a Unit Roads Parks EMS Police water Waste Total**
Single-Family Det. Dwelling $4,758 $2,485 $549 $661 $3,785 $242 $12,480
Multi-Family Dwelling $3,338 $1,963 $429 $516 $2,990 $0 $9,236
Hotel/Motel Room $4,767 $1,168 $Z58 $311 * $0 $8,283
Retail/Commerdal 1,000 sq. ft. $8,114 $0 $830 $999 * $0 $10,548
Office 1,000 sq. ft. $6,187 $0 $467 $562 * $0 $7,821
Industrial 1,000 sq. ft. $3,909 $0 $291 $351 * $0 $5,157
Warehouse 1,000 sq. ft. $2,287 $0 $187 $225 * $0 $3,304
Church/Synagogue 1,000 sq. ft. $3,121 $0 $467 $562 * $0 $4,756
School/College 1,000 sq. ft. $1,134 $0 $467 $562 * $0 $2,769
Hospital 1,000 sq. ft. $9,875 $0 $467 $562 * $0 $11,509
Nursing Home 1,000 sq. ft. $2,780 $0 $467 $562 * $0 $4,414
Other Institutional 1,000 sq. ft. $6,187 $0 $467 $562 * $0 $7,821
* see wastewater impact fees by water meter size below for nonresidential development
does not include wastewater impact fees for nonresidential development
Wastewater
Water Meter Size Im act Fee
5/8" x 3/4" Meter $570
1" Meter $1,425
1-1/2" Meter $2,850
2" Meter $4,560
3" Meter $9,120
4" Meter $14,250
6" Meter $28,500
8" Meter $45,600
10" Meter $82,650
{b) The fees set out above in subsection (a) shall be adjusted annually to account for
inflation. At the end of each calendar year during which the fees have not been
comprehensively updated, the impact fee administrator shall prepare an adjusted fee
schedule, which will be posted on the County's web site and be made publicly
available. The adjusted fee schedule will go into effect on January i of the following
year. The adjustment factor shall be the ratio of the appropriate cost index for the
quarter during which the adjustment is made (even if projected) to the same cost
index for the quarter during which the fees were last adopted, updated or adjusted.
The appropriate cost indices shall be as follows from the most recent edition of the
U.S. Army Corps of Engineers, Civil Works Construction Cost Index System, utilizing
the Hawaii adjustment factors:
(1) For road impact fees, the roads, railroads and bridges index;
(2) For park impact fees, the recreation facilities index;
(3) For fire/EMS, police and solid waste impact fees, the buildings, grounds and
utilities index;
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSGCIATES 8/9/06
6
(4) For wastewater impact fees, the pumping plant index.
In the event that the referenced cost indices become unavailable, the updates shall
be based on reasonable alternative indices as determined by the impact fee
administrator.
(c) Impact fees due and payable shall be net of any approved offsets available pursuant
to Section 36-13, Pre-ordinance offsets. It shall be the responsibility of the applicant
to claim offsets prior to payment of the impact fees. Any offsets not claimed shall be
deemed waived.
(d) If the type of impact-generating development is not specified on the above schedule,
the impact fee administrator shall determine the fee on the basis of the fee
applicable to the most nearly comparable type of land use on the fee schedule. In
the case of road impact fees, the impact fee administrator shall be guided in the
selection of a comparable type of land use by trip generation rates contained in the
most current edition of the report titled Trip Generation, prepared by the Institute of
Transportation Engineers (ITE), or articles or reports appearing in the ITE Journal.
(e) If a new wastewater customer is not also a water customer, the impact fee
administrator shall determine what size water meter would be required to serve the
development. If a larger or smaller water meter is required solely due to abnormally
low or high pressure in the County's main, the impact fee administrator shall adjust
the wastewater impact fee to reflect more accurately the wastewater demand.
(f) In general, impact fees shall be paid based on the principal use of a building or lot.
For example, a warehouse that contained a small administrative office would be
assessed at the warehouse rate for all of the square footage. Shopping centers are
assessed at the retail/commercial rate, regardless of the type of tenants. For a true
mixed-use development, such as one that includes both residential and
nonresidential development, the fee shall be determined by adding up the fees that
would be payable for each use as if it was afree-standing land use type pursuant to
the fee schedule.
(g) If the type of impact-generating development is for a change of land use type or for
the expansion, redevelopment, or modification of an existing development, the fee
shall be based on the net increase in the fee for the new land use type as compared
to the previous land use type.
(h) In the event that the proposed change of land use type, redevelopment, or
modification results in a net decrease in the fee for the new use or development as
compared to the previous use or development, there shall be no refund of impact
fees previously paid.
(i) Square feet in the fee schedule refers to gross floor area as herein defined.
Section 36-8. Affordable housing deferral.
The County may defer payment of impact fees by qualifying first-time home-buyers
orowner-builders through azero-interest loan program.
(a) The maximum amount of the loan shall be equal to the impact fees that had been
paid for the housing unit. The money shall be provided by the County to the
homebuyer at the time of closing on the sale of a newly-built housing unit to reduce
the size of the mortgage. For owner-builders, the money will be used to pay the
impact fees at the time of building permit issuance.
DRAFT ORDINANCE FOR COUNTY OF IIAWAB PREPARED BY DCINCAN ASSOCIATES 8/9/06
7
(b) The loan shall be due and payable when the recipient sells the house or no longer
occupies it as a principal residence, whichever occurs first.
(c) To apply for the affordable housing deferral, the buyer must provide the following:
(1) Federal income tax returns for atl persons whose name will be listed on the
title; and
(Z) a notarized affidavit signed by each person whose name will be listed on the
title stating that they have never been listed on the title of a housing unit.
(d) To qualify for an affordable housing deferral loan, the following conditions must be
met:
(1) the combined adjusted gross income of all persons whose names will be listed
on the title is less than 140 percent of the median adjusted gross income for
households in Hawaii County as reported by the U.S. Department of Housing
and Urban Development or its governmental successor in function; and
(2) the purchase price of the housing unit is less than the median home sales
price in Hawaii County for the most recent 12-month period for which data is
available from the Hawaii County Real Property Tax Office or other source. In
the case of an owner-builder, the price of the unit shall be estimated based on
the market value of the land as recorded by the Real Property lax Office and
the estimated construction cost used on the building permit application.
(e) An affordable housing trust fund shall be created to provide funding for the zero-
interest loans. No impact fee receipts will be deposited in the affordable housing
trust fund. The primary initial source of funding for the affordable housing trust fund
will be non-impact fee appropriations from the County's general fund. The proceeds
of loan repayments under this program shall be deposited back into the affordable
housing trust fund.
Section 36-9. Independent fee calculation.
(a) The impact fee may be computed by the use of an independent fee calculation study
at the election of the applicant, or upon the request of the impact fee administrator,
for any proposed land development activity interpreted as not one of those types
listed on the fee schedule or as one that is not comparable to any land use on the
fee schedule, and for any proposed land development activity for which the impact
fee administrator concludes the nature, timing or location of the proposed
development makes it likely to generate impacts costing substantially more to
mitigate than the amount of the fee that would be generated by the use of the fee
schedule.
(b) The preparation of the independent fee calculation study shall be the sole
responsibility and cost of the applicant.
(c) Any person who requests to perform an independent fee calculation study shall pay
an application fee for administrative costs associated with the review and decision on
such study.
(d) The independent fee cak:ulation study shall be based on the same service standards
and unit costs for facilities used in the needs assessment study (as adjusted by the
DRAFT ORDINANCE FOR COUNTY OF IIAWAII PREPARED BY DUNCANASSOCIATES 8/9/06
8
same cost inflation factors used in annual adjustments since the study was
prepared), and shall document the methodologies and assumptions used.
(e) An independent fee calculation study submitted for the purpose of calculating a road
impact fee may be based on data, information or assumptions from independent
sources, provided that:
(1) The independent source is an accepted standard source of transportation
engineering or planning data; or
(2) The independent source is a local study on trip characteristics carried out by a
qualified transportation planner or engineer pursuant to an accepted
methodology of transportation planning or engineering.
(f) The road impact fees shall be calculated according to the following formula.
FEE = VMT x NET COSTNMT
Where:
VMT = TRIPS x % NEW x LENGTH _ 2
NET COSTNMT = COST/VMC x VMCNMT - CREDITNMT
TRIPS = Trip ends during an average weekday
a/o NEW = Percent of trips that are primary trips, as opposed to passby
or diverted-link trips
LENGTH = Average length of a trip on the major roadway facilities
2 = Avoids double-counting trips for origin and destination
COST/VMC = Average cost to add a new daily vehicle-mile of capacity
VMC/VMT = System-wide ratio of VMC to VMT on the major roadway
facilities (assumed 1:1)
CREDIT/VMT = DEBTNMT + PAST/VMT + GRANTNMT
DEBT/VMT = Outstanding debt used for capacity improvements on existing
road facilities divided by total existing VMT
PASTNMT = The net present value of property taxes paid over the last five
years by vacant land for road capacity improvements,
including general fund expenditures as well as debt service
payments, per VMT
GRANTNMT = The net present value of future Federal and State roadway
capacity funding anticipated to be forthcoming per VMT over
the next 20 ears
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
9
(g) The park impact fees shall be calculated according to the following formula.
FEE = EDUS x NET COST/EDU
Where:
EDUS = UNITS XEDUS/UNIT
UNITS = Number of dwelling units of each housing type in the
development
EDUS/UNIT = Number of Equivalent Dwelling Unitr represented by one
dwelling unit of a given housing type
NET COST/EDU =COST/EDU -CREDIT/EDU
COST/EDU =Total replacement cost of existing park facilities divided by
total existing residential development in the county,
expressed in terms of EDUS
CREDIT/EDU = DEBT/EDU + PAST/EDU + GRANT/EDU
DEBT/EDU =Outstanding debt on existing park facilities divided by total
existing EDUS
PAST/EDU =The net present value of property taxes paid over the last five
years by vacant land for park capacity improvements,
including general fund expenditures as well as debt service
paymentr, per EDU
GRANT/EDU =The net present value of future Federal and State grant
funding anticipated to be forthcoming per EDU over the next
20 ears
DRAFT ORDINANCE FOR COUNTY OF I IAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
10
(h) The fire/EMS impact fees shall be calculated according to the following formula.
FEE = EDUS x NET COST/EDU
Where:
EDUS = UNITS XEDUS/UNIT
UNITS = Number of dwelling units of each housing type in the
development or thousands of square feet of nonresidential
buildings of each land use type
EDUS/UNIT = Equivalent Dwelling Units represented by one dwelling unit of
a given housing type or 1,000 square feet of nonresidential
Floor area of a given land use type. Calculated as the ratio of
the functional population per dwelling unit or per 1,000
square feet to the functional population of the typical single-
family detached unit. For residential development, functional
population per unit is one-half the average household size for
that housing type. For nonresidential development, the
functional population per unit is determined by the following
formula:
Functional population/1000 sf = (employee hours/1000 sf +
visitor hours/1000 sf) _ 24 hours/day
Where:
Employee hours/1000 sf = employees/1000 sf x SO hrs/day
Visitor hours/1000 sf = visitors/1000 sf x 1 hour/visit
Visitors/1000 sf =weekday ADT/1000 sf x avg. vehicle
occupancy -employees/1000 sF
Weekday ADT/1000 sf =one-way average daily trips (total
trip ends - 2)
NET COST/EDU =COST/EDU -CREDIT/EDU
COST/EDU =Total replacement cost of existing fire/EMS facilities divided
by total existing residential and nonresidential development
in the county, expressed in terms of EDUS
CREDIT/EDU = DEBT/EDU + PAST/EDU + GRANT/EDU
DEBT/EDU =Outstanding debt on existing fire/EMS facilities divided by
total existing EDUS
PAST/EDU =The net present value of property taxes paid over the last five
years by vacant land for fire/EMS capacity improvements,
including general fund expenditures as well as debt service
payments, per EDU
GRANT/EDU =The net present value of future Federal and State grant
funding anticipated to be forthcoming per EDU over the next
20 ears
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPAREll BY DUNCAN ASSOCIATES 8/9/06
I1
(i) The police impact fees shall be calculated according to the following formula.
FEE = EDUs x NET COST/EDU
Where:
EDUs = UNITS X EDUs/UNIT
UNITS = Number of dwelling units of each housing type in the
development or thousands of square feet of nonresidential
buildings of each land use type
EDUS/UNIT =Equivalent Dwelling Units represented by one dwelling unit of
a given housing type or 1,000 square feet of nonresidential
floor area of a given land use type. Calculated as the ratio of
the functional population per dwelling unit or per 1,000
square feet to the furctional population of the typical single-
family detached unit. For residential development, functional
population per unit is one-half the average household size for
that housing type. For nonresidential development, the
functional population per unit is determined by the following
formula:
Functional population/1000 sf = (employee hours/1000 sf +
visitor hours/1000 sf) - 24 hours/day
Where:
Employee hours/1000 sf =employees/1000 sf x 30 hrs/day
Visitor hours/1000 sf = visitors/1000 sf x i hour/visit
Visitors/1000 sf =weekday ADT/1000 sf x avg. vehicle
occupancy -employees/1000 sf
Weekday ADT/1000 sf =one-way average daily trips (total
trip ends + 2)
NET COST/EDU =COST/EDU -CREDIT/EDU
COST/EDU =Total replacement cost of existing police facilities divided by
total existing residential and nonresidential development in
the county, expressed in terms of EDUs
CREDIT/EDU = DEBT/EDU + PAST/EDU + GRANT/EDU
DEBT/EDU =Outstanding debt on existing police facilities divided by total
existing EDUs
PAST/EDU =The net present value of property taxes paid over the last five
years by vacant land for police capacity improvements,
including general fund expenditures as well as debt service
payments, per EDU
GRANT/EDU =The net present value of future Federal and State grant
funding anticipated to be forthcoming per EDU over the next
20 ears
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
12
(j) The solid waste impact fees shall be calculated according to the following formula.
FEE = EDUS x NET COST/EDU
Where:
EDUS = UNITS XEDUS/UNIT
UNITS =Number of dwelling units of each housing type in the
development
EDUS/UNIT = Number of Equivalent Dwelling Units represented by one
dwelling unit of a given housing type
NET COST/EDU =COST/EDU -CREDIT/EDU
COST/EDU =Total replacement cost of existing solid waste facilities that
serve residential development utilizing transfer stations
divided by all existing single-family detached units
CREDIT/EDU = DEBT/EDU + PAST/EDU + GRANT/EDU
DEBT/EDU =Outstanding debt on existing solid waste facilities attributable
to residential development utilizing transfer stations divided
by all existing single-family detached units
PAST/EDU =The net present value of property taxes paid over the last five
years by vacant land for solid waste capacity improvements
attributable to residential development utilizing transfer
stations, induding general fund expenditures as well as debt
service payments, per EDU
GRANT/EDU =The net present value of future Federal and State grant
funding anticipated to be forthcoming for solid waste capital
improvements attributable to residential development per
EDU over the next 20 ears
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
13
(k) The wastewater impact fees shall be calculated according to the following formula.
FEE = SFES x NET COST/SFE
Where:
SFES = UNITS x SFES/UNIT
UNITS = Number of dwelling units of each housing type in a residential
development or the number of water meters of various sizes
in a nonresidential development
SFES/UNIT = Number of Single-Family Equivalents represented by one
dwelling unit of a given housing type or by a water meter of a
particular size
NET COST/SFE = COST _ CAPACITY x GPD/SFE -CREDIT/SFE
COST = Total replacement cost of existing major facilities, excluding
lines less than 12" in diameter typically installed by
developers
CAPACITY = Capacity of existing treatment plants in gallons per day
GPD/SFE = 230 gallons per day per SFE
CREDIT/SFE = DEBT/SFE + PAST/SFE
DEBT/SFE = DEBT _ CAPACITY x GPD/SFE
DEBT = Outstanding debt on existing major wastewater facilities and
equipment
PAST/SFE = PAST _ CAPACITY x GPD/SFE
PAST = The net present value of property taxes paid over the last five
years by vacant land for wastewater capacity improvements,
including general fund expenditures as well as debt service
a ments
Section 36-10. Use of fees.
(a) An impact fee fund that is distinct from the general fund of the County is hereby
created, and khe impact fees received will be deposited in the following interest-
bearing accounts of the impact fee fund:
(1) Road Impact Fee Account;
(2) Park Impact Fee Account;
(3) Fire/EMS Impact Fee Account;
(4) Police Impact Fee Account;
(5) Solid Waste Impact Fee Account; and
(6) Wastewater Impact Fee Account;
(b) Within each account, with the exception of the wastewater impact fee account, there
are hereby created five sub-accounts, corresponding to four sub-area benefit zones
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8!9106
14
and one county-wide benefit zone. The sub-area benefit zones shall consist of the
following aggregations of judicial districts:
(1) 1-North KohalaJSouth Kohala;
(2) 2-North Hilo/South Hilo and Hamakua;
(3) 3-Puna/Kau;and
(4) 4-North Kona/South Kona.
(c) Within the wastewater impact fee account, there are hereby created five sub-
accounts, corresponding to the five County wastewater systems, as follows:
(1) 1-Kealakehe;
(2) 2-Kapehu;
(3) 3-Kulaimano;
(4) 4-Papaikou; and
(5) 5-Hilo.
(d) With the exception of solid waste and wastewater impact fees, up to 20 percent of
the impact fee revenues collected within a benefit zone may be used to fund
improvements located outside the benefit zone in which the fees were collected,
provided that the County Council makes a finding that the improvement will provide
significant benefit to new development in the collecting zone. For solid waste impact
fees, the percentage shall be 40 percent. Wastewater impact fee revenues shall be
placed in the sub-area account corresponding to the wastewater system to which the
fee payer is connected, and shall be spent only for improvements to that wastewater
system.
(e) Each account shall contain only those impact fees collected pursuant to this chapter
for the type of facility reflected in the title of the account plus any interest that may
accrue from time to time on such amounts. Any accrued interest shall be subject to
the same restrictions as other funds in the account.
(f) Monies in each impact fee account shall be considered to be spent in the order
collected or accrued, on a first-in/first-out basis.
(g) The monies in each impact fee account shall be used only for the following:
(1) To acquire or construct system improvements of the type reFlected in the title
of the account;
(2) To pay debt service on any portion of any current or future general obligation
bond or revenue bond that was used to create capacity of the type reFlected
in the title of the account that will be available to serve development
occurring after the effective date of this chapter;
(3) As described in Section 36-11, Refunds; or
(4) As described in Section 36-12, Post-Ordinance Reimbursements.
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCANASSOCIATES S/9/06
15
(h) The monies in each impact fee account shall not be used for the following:
(1) Rehabilitation, reconstruction, replacement or maintenance of existing
facilities; or
(2) Ongoing operational costs
Section 36-11. Refunds.
Any monies in the impact fee fund that have not been spent or encumbered within
six (6) years after the date on which such fee was paid shall be returned to the current
owners with interest since the date of payment.
(a) Notice of the right to a refund, including the amount of the refund and the procedure
for applying for and receiving the refund, shall be sent or served in writing to the
present owners of the property within thirty (30) days of the date the refund
becomes due. The sending by regular mail of the notices to all present owners of
record shall be sufficient to satisfy the requirement of notice.
(b) Application for a refund shall be submitted to the County within one year of the date
on which the right to a refund arises.
(c) Following approval of the refund application by the impact fee administrator, the
refund shall be paid in full.
(d) Any unclaimed refund shall be retained in the appropriate account and expended as
provided in Section 36-10, Use of Funds.
(e) In the event that the County terminates impact fee requirements, all unexpended or
unencumbered funds shall be refunded as provided in this section. The County shall
give public notice of termination and availability of refunds at least two times. All
funds available for refund shall be retained for a period of one year at the end of
which any remaining funds may be transferred to the County's general fund and
expended for any public purpose not involving water supply or service as determined
by the County Council.
Section 36-12. Post-ordinance reimbursements.
(a) Credit for reimbursements from impact fees collected by the County shall be
provided for contributions toward the cost of system improvements for the same
type of facility.
(1) Approved credits shall generally become effective when the improvements
have been completed and have been accepted by the County.
(2) No credit will be applied to the road impact fee for improvements to the major
roadway facilities that primarily serve traffic generated by the applicant's
project, such as acceleration/deceleration lanes into and out of the project.
(3) Approved credits for land dedication shall become effective when the land has
been conveyed to the County and has been accepted by the County.
(b) In order to receive credit for system improvements, the developer shall submit
complete engineering drawings, specifications, and construction cost estimates or
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES S/9tt16
16
property appraisals to the impact fee administrator. The impact fee administrator
shall determine the amount of credit due based on the information submitted, or
where such information is inaccurate or unreliable, then on alternative engineering or
construction costs acceptable to the impact fee administrator. The impact fee
administrator may independently determine the amount of credit to be approved for
land dedication by securing other property appraisals, or requiring submittal of other
relevant information.
(c) To qualify for an impact fee reimbursement credit, the developer must enter into an
agreement with the County. At a minimum, the developer agreement shall specify
the amount of the credit, and within how many years the developer will be
reimbursed from impact fees collected by the County, assuming adequate funds are
available for such repayment.
(d) The County will allocate a maximum of 25 percent of annual impact fees collected for
each facility type to reimburse developers for eligible improvement credits. If the
amount allocated for reimbursements is not sufficient to make all payments due to
developers for that year, each developer will receive a pro rata share of the amount
owed, and the unpaid amount will added to the amount owed for the following year.
If less than 25 percent of annual impact fee collections is required for
reimbursements in any given year, the remainder may be used for project
expenditures.
(e) Credits provided pursuant to this chapter shall be valid from the effective date of
such credits until ten (10) years after such date.
Section 36-13. Pre-ordinance offsets.
(a) Owners of property for which capital contributions (system improvements, land
dedications or fair share payments) were made prior to the effective date of this
chapter may apply for an offset against impact fees for the same type of facilities.
Offsets may be used to reduce the amount of impact fees due from the property on a
dollar-for-dollar basis.
(b) Application for such offsets must be made, on forms provide by the County, within
one (1) year after the effective date of this chapter.
(c) In the event that the impact-generating development for which the offset is claimed
is partially completed, the amount of the offset shall be reduced by the amount of
the impact fees that would have been charged for the completed portion of the
development had this chapter been in effect. In the event that the impact-
generating development project has been fully completed, no offset shall be
authorized.
(d) If some offset is warranted, the amount of the offset shall be determined by the
impact fee administrator based on the information supplied by the property owner.
The amount of the offset shall be equal to the cost of the improvement, the fair
market value of the land dedicated or the amount of the fair share payment, inflated
to present value.
(e) The offset shall be applied against the impact fees due for building permits issued on
the property until the amount of the offset is exhausted or the development project
for which the capital contribution was made is completed. In no case shall any offset
be transferred from the development project for which the capital contribution was
made.
DRAFT ORDINANCE FOR COUNTY OF HAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
17
Section 36-14. Miscellaneous provisions.
(a) Nothing in this chapter shall restrict the County from requiring the construction of
reasonable project improvements required to serve the development project,
whether or not such improvement are of a type for which credits are available under
Section 36-12, Post-Ordinance Reimbursements.
(b) The impact fee administrator shall maintain accurate records of the impact fees paid,
including the name of the person paying such fees, the project for which the fees
were paid, the date of payment of each fee, the amounts received in payment for
each fee, and any other matters that the County deems appropriate or necessary to
the accurate accounting of such fees. Records shall be available for review by the
public during normal business hours and with reasonable advance notice.
(c) Annually, the impact fee administrator shall present to the County Council a
proposed capital improvements program that shall assign monies from each impact
fee fund to specific projects and related expenses for eligible improvements of the
type for which the fees in that fund were paid. Any monies, including any accrued
interest, not assigned to specific projects within such capital improvements program
and not expended pursuant to Section 36-1i, Refunds, or Section 36-12, Post-
Ordinance Reimbursements, shall be retained in the same impact fee fund until the
next fiscal year.
(d) If an impact fee has been calculated and paid based on a mistake or
misrepresentation, it shall be recalculated.
(1) Any amounts overpaid by an applicant shall be refunded by the impact fee
administrator to the applicant within thirty (30) days after the acceptance of
the recalculated amount, with interest since the date of such overpayment.
(2) Any amounts underpaid by the applicant shall be paid to the impact fee
administrator within thirty (30) days after the acceptance of the recalculated
amount, with interest since the date of such underpayment.
(3) In the case of an underpayment to the impact fee administrator, the County
shall not issue any additional permits or approvals for the project for which
the impact fee was previously underpaid until such underpayment is
corrected, and if amounts owed to the County are not paid within such thirty
(30) day period, the County may also rescind any permits issued in reliance
on the previous payment of such impact fee.
(e) The impact fees and the administrative procedures established by this chapter shall
be reviewed at least once every three (3) years.
Section 36-15. Appeals.
Any determination made by the impact fee administrator charged with the
administration of any part of this chapter may be appealed to the County Council within
thirty (30) days from the date of the decision appealed.
Section 36-16. Violation.
Furnishing false information on any matter relating to the administration of this
chapter, including without limitation the furnishing of false information regarding the
DRAF"L ORDINANCE FOR COUNTY OF I-IAWAII PREPARED BY DUNCAN ASSOCIATES 8/9/06
i8
expected size, use, or impacts from a proposed development, shall be a violation of this
chapter.
Section 36-17. Effective date.
The provisions of this chapter will take effect one year following the date of adoption of the
ordinance creating this chapter.
DRAFT ORDINANCE FOR COUNTY OF fIAWAII PREPARED BY DUNCAN ASSOCIATES S/9/06
I9
rr w
ud'"-~
• Chtistopiter 3. Yuer~
harry I~lID ~ rHrector
Mayor ~ -
rat,.: • r.
Roy R. Takemoto
- - - DepuryDirector
ft~Iruutg ~ ~ttfirtt~i
PLANNING DEPARTMENT
25 Aupuni Street Room I09 • Hilo, Hawaii 96720-4252
MEMORANDUM teas) %I-s28s • Fax (8081 %I-8742
N0.03-2
January 7, 2003
T0: STAFF ~
FROM: CHRISTOPHER 7. YUENC/' 0
PLANNING DIILECTOR
SUBJECT: MEMORANDUM OF AGi2EEMENT BETWEEN THE COUNTY OF
HAWAII AND THE DEPARTMENT OF HAWAIIAN HOME LANDS
The County ofHawaii and the Deparnnent ofHawaiian Hofne Lands have adopted a
Memorandum of Agreement. A copy of the full MOA is attached to this memo. It
covers various areas such as the payment of real property takes and county maintenance
of facilities on DHHL property. The purpose of this memo is to explain how the MOA
affects our activities in the Planning Department.
The basic premise of the MOA is that County zoning cannot override the authority of the
Hawaiian Homes Commission to control the uses of its property. However, County
regulations that do not have the eff.
ect of controlling the ultimate use still apply. Much of
what the Planning Department does--subdivision approval, plan approval, building
petmitrevlew-happens after the determination of the basic. use has been zoned. These
Planning Depazhnent services aze necessary for the orderly development of land in this
county. They are a service both to the affected landowner and the general community.
Under the biOA, DHHL will determine the uses for its lands through its own planning
system, and will follow land use plans adopted by the Hawaiian Homes Conunission.
Those plans are currently being formulated. The Planning Department will have input,
but not any final authority. Generally speaking, DHHL must go through a Chap. 343 EIS
pm(:ess before beginning any new projects; because of the I~waii Supreme Court's
decision in Kepo'o v: Watson, 87 Haw. 91, 952 P.2d 379 (1998), so the public can
comment on their plans during that process.
STAFF
Page 2
7anuary 7, 2003
DHHL will let the County know its preferred zoning designation for its property and the
Planning Department will enter those on its maps. DHHL will choose from the existing
county zoning districts. For lands that are presently occupied, we will be writing to
DHHL to suggest zoning designations that aze consistent with the present uses. For
example, the present Wahnart Center site is zoned ML; the present uses would be more
consistent with CG or possibly MCX.
We will have some formality in entering these zoning designations on the maps. I will be
writing to DHHL to ask whether these zoning designations for existing uses should be
decides by the Commission or by their staff. On our end, there will be a director's memo
duetting the change in the zoning maps after we get word from DHHL, and the map
entry will reference the memo.
Thereafter, the Planning Department will administer permits and approvals on
DHHL property in the same way as it would for other landowners (with slight
differences as discussed in this memo.) The MOA says that "all normal land use
controls wit] be applied by Hawaii County to DHHL property according to the zoning
district selected by DHHL." This means that, for example, that ifDHHL constructs a
new residential subdivision in what they have designated as 8n RS-10 zone, they will
apply for subdivision approval in the same manner as other subdividers, and will beheld
to the same standazds for roads and other infrastructure (unless they obtain a variance or a
PUD, again through normal procedures). DHHL lessees who wish to construct buildings
in commercial districts will need Plan Approval. 1n reviewing building permits for
homes on DHHL property, Planning Department staff will 1QOk for the same elements as
in the applicable zoning district: setbacks, heights, etc. We rVill continue to waive
subdivision fees for DHHL per prior agreement.
All permit applications will have to be accompanied by a written consent from DHHL.
Unless you aze instructed otherwise, a consent signed by a DHHL staffperson will be
adequate; this will not be done by the Commission. We will be writing DHHL to
determine if there are categories of applications that will not need DHHL consent, such
as building permits for minor home improvements.
Under the MOA, the county will also enforce land use violarions on Hawaiian home
lands. Because of some transitional issues, all complaints should be discussed with the
director or deputy director before any action is taken. One of the main transitional issues
is that some of the present zoning desigtations will have to be changed: we will not be
citing Walmart and Borders as zoning code violations pending the change from ML. We
STAFF
Page 3
January 7, 2003
will also inform DHHL of any violation before we make a citation and give them the
opportunity to correct it before we take any enforcement action. For the most part,
zoning violations will also be violations of the DHHL lease. There are going to be some
thorny issues with respect to violations because in some cases, people established
businesses on DH1iL property that aze inconsistent with zoning after observing that the
County was talang the position that it had no jurisdiction to control land uses on DHHL
ProP~Y-
DHHL lessees will have to apply (with DHHL consent) fok special permits on ag land,
and for use perrnits on residentially-zoned land, if they wish to commence uses that
would need special permits or use permits in the zone in question. The MOA does
contemplate that DHHi. may implement its own special permit procedure at some point
in the future.
For new developments, County zoning will not con~ol the ultimate use; our only role
will be to comment. The MOA does commit DHHL to build offsite infrastrncture
necessary for the new development (such as access roads to the property) to the same
extent that would be expected of a private developer similazly situated.
This memo probably does not answer ail questions that might arise in connection with
DI~II. property. Any questions should be brought to the director or deputy director. The
MOA itself does not answer alt questions. We aze committed to working out unresolved
issues with DHHL in a cooperative spirit. Staff should bring these issues to the director
or deputy director so that we can discuss them with DHHL.
During the negotiation of the MOA we had questions about the overall legality of the
agreement. There is definitely a legal "gray azea" with respect to the county's authority
over DHHL property. There is also a gray azea with respect to state property in general.
These jurisdictional disputes and gay azeas have led to the govennment not doing its job
of serving the public. "Roads in limbo" is a prime example. The DHHL MOA is the
attempt of the County government and DH1II. to get back on track in a positive way. The
only ways to remove the legal ambiguities aze (1) legislation enacted by the state
legislature, and (2) litigation. Either of these routes often results in further ambiguity and
uncertainty.
Turning to the legality of the present MOA, it is clear that, in general, the county has no
zoning authority over DHHL property unless some state statute gives it that authority. It
is also cleaz that the County has no authority to prohibit DJTIiL from taking the property
STAFF
Page 4
January 7, 2003
granted to it and leasing it to Native Hawaiians for residential, agricultural, and pastoral
uses. The major gray-area concerns the laws that permit DHHL to lease land for
commercial and industrial uses. It is not clear whether these laws incorporate the same
restriction as DLNR leases of commercial and industrial lands: that they be "consistent
with county zoning requirements". See H.R.S. sec. 171-41 (a) (which applies to DLNR
leases), and which possrbly applies to commercial and industrial leases on DHHL
property because of sec. 204(a)(2) of the Hawaiian Homes Act.
From the County's point of view, we want our zoning control to cover all lands so that
we can implement comprehensive planning. From DHHL's point of view, it could not
accept county zoning control without clear legal authority, and the County had previously
acceded to DHHL's position that its commercial leases were not subject to county zoning
(most prominently in the case of Walmart Center.) We primarily based the ultimate
compromise in the MOA on the Hawaii Supreme Court's statement in Kepo'o v. Wavson
that zoning restrictions would not apply on DHHL property because they had the ultimate
effect of controlling the use. 87 Haw. at 101. Although this is not a binding statement of
the law, because the case did not directly involve county zoning, it is the closest
statement made by the court on the issue.
On the other hand, the court also said in Kepo'o that DHHL property could be subject to
other governmental regulations enacted to promote the public health and safety, such as
Pnvironmental laws, as long as they had only an incidental of indirect effect upon the use
ofthe property. This, therefore, is the legal basis for applying other regulations such as
the various standards of the zoning code (setbacks, required parlong areas, etc.), the
building code, the subdivision code, grading ordinance, flood control laws, etc.
We have a February 2002 corporation counsel opinion that says that the approach taken
by the MOA is legs] and supercedmg Corporation Counsel Clpinion 98-02.
C7Y:pak
Wpwm601(.'hnc1DHHL SWff on MOA.doc-NO.03-02
Attachment
cc: Mayor Harry Kim
Mr. Darrell C. Yagodich, DHHL via Planning Office
Memorandum of Agreement Between the County of Hawaii
and the Department of Hawaiian Home Lands
I. Pu ose
The purpose of this Memorandum of Agreement (MOA) is to clarify the respective roles,
responsibilities, and obligations of the County of Hawaii (County)-and the Department of
Hawaiian Home Lands (DHHL) relating to land use planning, infrastructure maintenance,
enforcement of laws, and collection of taxes and other fees on Hawaiian home lands.
II. Guidin¢ Principles
The following general principles have guided the development of this MOA:
A. The Hawaiian Homes Commission is responsible for determining land use on
Hawaiian home lands. The County may not use its land use and caning powers to
prevent the Hawaiian Homes Commission from controlling the use of Hawaiian
home lands.
B. The County and DHHL share common goals in planning for the use of Hawaiian
home lands: both support the orderly development of those lands for the benefit of
native Hawaiians and both aze committed to the integration of planning by DHHL
and Hawaii County.
C. The County should manage and maintain all infrastructure built to County
standards
D. The County is authorized to enforce criminal laws and applicabte County
ordinances and regulations on Hawaiian home lands.
E. Hawaiian homestead lessees are residents of the County of Hawaii and should be
treated in a manner consistent with all other residents of the County.
F. Hawaiian homestead lessees should pay all taxes and fees required by law.
G. The County and DHHL acknowledge that there are areas where agreement will
not be reached, and agree to continue to work together toward a mutually
acceptable resolution of such issues.
III. Relative to Plannin¢ and Land Use
A. DHHL will implement its Planning System which includes plans with DHHL land
use designations such as the Hawaii Island Plan, various Development and
Subdivision Plans, and Homestead Community Plans. In the formulation,
updating, and amendment of these plans, DHHL will consult with the relevant
County departments, and shall give due consideration and weight to their
COH/DHHL Memorandum of Agreement
Page 2
comments, and to the Hawaii County General Plan, and other officially adopted
plans such as Community Development Plans. All land uses on DHHL property
' wil! be placed according to the applicable DHHL plans.
B. The County will consult with DHHL over the appropriate designations of DHHL
property in the Hawaii County General Plan LUPAG maps, and shall give due
weight and consideration to the comments of DHHL, and to officially adapted
DHHL plans.
C. Based on its plans and DHHL land use designations, DHHL will determine the
appropriate County zoning districts that shall apply to the property in question.
DHHL will communicate these zoning districts to the County.
D. .All nognaLlaucLtrsernntrols wiII be applied by Hawaii County to DHHL property
according t0 the zoHing district selected by DHHL. Except as specifically
provided in the Agreement, I5~II3'L will follow all normal land use procedures,
regulations, and standards applicable to the zoning district,
E. All land use permit applications on Hawaiian home lands must be accompanied
by written consent from DHHL before the County can begin processing those
applicatioas-
F. The stan_dar~s of the various zoning districts selected will apply to DHHL
property. DHHL and its lessees will go through normal County administrative
variance procedures if they seek exemptions from standards.
G. For uses allowed in the various zoning districts that requir~.sQeci la~~eermits o~ use
permits, DHHL and its lessees will go through the applicable County "permit
procedures. At some time in the future, DHHL may implement its own use
permit procedure for Hawaiian home lands. If DHHL grants use permits, it will
be responsible for enforcing violations of those permits. The County will be
notified when DHHL has formulated its use permit system.
H. The County will advise DHHL of all violations by its lessees. The County will
enforce land use codes and regulations on Hawaiian home lands in the same
manner as with other landowners. DHHL will cooperate with the County in
enforcing the terms of its leases requiring conformity to applicable laws and
regulations, if requested by the.County. Ongoing violations and failure to comply
will be refereed to DHHL after the County has exhausted all remedies short of
pursuing legal action to address the violation. DHHL may institute lease
enforcement proceedings in advance of, or in lieu of, County enforcement actions.
COH/DI3HL Memorandum of Agreement
Page 3
IV. Relating to Public Facilities and Infrastructure Serving Hawaiian Home Lands
A. In the development of future projects, DHHL will construct public facilities in
accordance with County standazds. Where departures from County standards are
desired, DHHL will pursue exemptions and other administrative variances from
the appropriate County department, in accordance with procedures established for
all property owners. Should DHHL choose not to construct infrastructure in
accordance with County standards, the County may view such improvements as
private facilities for repair and maintenance purposes.
B. The County will accept operation, repair, and maintenance of a!1 future DHHL
infrastructure constructed according to County standazds.
C. Existing infrastructure shall be subject to County inspection prior to being
accepted by the County for operation, repair, and maintenance. The County may
require DHHL to repair any damage such as leaks, holes, sags, or deterioration
affecting the operation of the existing infrastructure, identified as a result of the
inspection.
D. In the case of existing infrastructure that is not constructed to County st~nd;~rds;
the County and DHHI. will work to establish minimum standards for residential,
agricultural, and pastoral subdivisions. Existing projects will be evaluated based
on these new standards. The County may require DHHL to upgrade the
infrastructure to the minimum standard prior to being accepted by the County for
operations, repair, and maintenance.
E_ The County will maintain infrastructure according to its own standards, resources
and schedules_ Any decisions as to upgrades or rehabilitation will be at the
County's discretion.
F. Should DHHL elect to convert its land to a more intensive land use, DHHL will
be responsible for upgrading the onsite infrastructure to accommodate the new
use, and will consult with the County regarding the need to upgrade offsite
infrastructure. DHHL and the County shall negotiate the extent to which DHHL
will be responsible for any such offsite improvements requested by the County.
DHHL shall be responsible for project-related offsite improvements to the extent
that these would be required of other developers with similar projects. If offsite
improvements benefit other property, DHHL and the County shall cooperate so
that DHHL bears only its fair share of these improvement costs.
G. The County will treat DHHL lessees in the same manner as other property owners
with respect to conformity with laws, ordinances, and regulations. The County
will advise DHHL of violations, and will refer cases of ongoing violation to
DHHL after the County has exhausted all remedies short of pursuing legal action
COH/DHHL Memorandum of Agreement
Page 4
to address the violation. DHHL reserves the right to institute lease enforcement
proceedings in advance of, or in lieu of, County enforcement actions.
V. Relating to the Enforcement of Criminal Violations on Hawaiian Home Gands
A. The County is authorized to and will enforce violations of criminal law on
Hawaiian home lands.
B. County law enforcement agencies and DHHL will work to establish procedures
regazding sharing information and providing testimony relating to arrests made on
Hawaiian home lands needed for contested case hearings and other administrative
and/or judicial proceedings.
VI. Relative to Real Property Taxes
A. Homestead lessees on Hawaiian home lands aze responsible for the payment of
real property taxes in accordance with the Hawaiian Homes Commission Act,
1920, as amended, and applicable County ordinances.
B. The County agrees to waive the penalty and interest on alt delinquent real
property taxes owed by Hawaiian homestead lessees as of December 31, 2001_
Such waiver will apply to payments made by February 20, 2002, or to payments
advanced by DHHL pursuant to pazagrapfi C.
C. For those homestead lessees with real property tax balances, excluding penalty
and interest, of more than $500, if payment is not made by February 20, 2002,
DHHL will advance full payment of all real property taxes, excluding penalty and
interest, to bring those bills current, within 60 days of receipt of an updated real
property tax listing- This dale may be extended by mutual agreement of the
parties.
D. It is understood that the County's waiver of interest and penalty chazges on
delinquent real property taxes owed by homestead lessees as of December 31,
2001, and DHHL's advance of full payment of real property taxes, excluding
.interest and penalty, in accordance with pazagraph C, is a one-time only offer.
E. In order to alleviate or reduce further delinquencies, the County will notify DHHL
on an annual basis of any delinquent property owners.
F. The parties will continue to meet on an annual basis to evaluate the extent of
delinquencies by Hawaiian homestead lessees on the Island of Hawaii and take
action, if necessary, to keep delinquencies from recurring.
COH/DHHL Memorandum of Agreement
Page 5
G. The County and DHHL shall work to establish a customer trust fund by 7uly 1,
2004 to collect real property tax payments as part of the mortgage/loan payments
in order to make smaller, regular payments.
VII. Areas for Further Collaboration
The parties agree to work further on the following issues:
A. The creation ofnew County zoning districts for farming and pastoral activities.
B. The development of infrastructure standards for rural land uses such as
agricultural and pastoral activities.
C. The establishment of procedures for sharing evidence, infom~ation, and testimony
involving criminal violations on Hawaiian home lands.
D. The implementation of actions.to prevent and/or address future real property tax
delinquencies by Hawaiian homestead lessees.
VIII. Termination
To achieve the objectives of this MOA, either party may, by mutual agreement in writing,
furihet clarify or waive any term or condition of this agreement, providgd such action
does not violate any statutes, ordinances, or binding ntles or regulations. DHHL and the
County reserve the right to terminate this MOA upon one hundred eighty (180) days
notice in writing to the other party.
In agreement thereofy the parties have entered into this Memorandum of Agreement on this
day of , 2002.
COUNTY OF HAWAII DEPARTMENT OF HAWAIIAN HOME
LANDS
/ '
1 ~
B 1~ By I
Harr}, R~ dyor and C. oon, Chairman
ail mes Commission
V
APPROVED AS TO FORM:
By
Corporation Counsel D putt' Attorney General