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HomeMy WebLinkAboutCOM 0005.000 2008-2010 Harry Kim Christopher J. Yuen Mayor : • Director Brad Kurokawa, ASLA ,L of LEED® AP Tountg of palu2YIL Deputy Director PLANNING DEPARTMENT November 18, 2008 101 Paualu street, suite 3 • Hilo, Hawaii 967204224 (808) 961-8288 • FAX (808) 961-8742 Mr. Micah A. Kane, Chairman Hawaiian Homes Commission o o STATE OF HAWAII c ~Q? DEPARTMENT OF HAWAIIAN HOME LANDS P.O. Box 1879 r Honolulu, HI 96805 _'7V Mark Bennett, Esq. Attorney General _ STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Hale Auhau 425 Queen Street Honolulu, HI 96805 Dear Messrs. Kane and Bennett: SUBJECT: REQUEST ATTORNEY GENERAL'S OPINION RELATING TO PROPERTY UNDER THE JURISDICTION OF THE DEPARTMENT OF HAWAIIAN HOME LANDS (DHHL) I am writing to inquire about the status of the August 8, 2008 request for a formal Attorney General opinion on several land use issues involving the Department of Hawaiian Home Lands. A copy of that letter is attached. Sincerely, it CHRISTOPHER J. YUEN Planning Director CJY:pak Wpwin60/Chris 08 - Micah Kane, DHHL - Mark Bennett - AG - Opinion - Status Attachment Comm. No. Ref. To: Ref. Date NOV 2 0 2001 [a! Hawaii County is an Equal Opportunity Provider and Employer. Mr. Micah A. Kane, Chairman Hawaiian Homes Commission STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS Mark Bennett, Esq. Attorney General STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Page 2 November 18, 2008 cc: Mayor Harry Kim Honorable Pete Hoffmann and Members of the County Council Lincoln Ashida, Esq. - Corporation Counsel Mr. Henry Eng, Department of Planning and Permitting Mr. Ian Costa, Department of Planning (Kauai) Mr. Jeffrey S. Hunt, Department of Planning (Maui) Mr. Orlando Davidson, Land Use Commission Mr. Abbey Seth Mayer, Office of Planning ee ~•I•d ®P pro 1A,,r AdnRrcy Kam »o CBah a ¢~P& er yuem Director "Wg°di•a>'a' - Emd KurOlmwP ASLA LEED@ AP Tlaunty of PRfunii DePaty Director PLANNING DEPARTMENT 101 Pauahi Street, suite 3 • Hilo, Havraii 96720-4224 (808) 961-8288 - FAX (808) 961-8742 August 8, 2008 Mr. Micah A. Kane, Chairman Hawaiian Homes Commission STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS P.O. Box 1879 Honolulu, HI 96805 Mark Bennett, Esq. Attorney General STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Hale Auhau 425 Queen Street Honolulu, HI 96805 Dear Messrs. Kane and Bennett: SUBJECT: REQUEST ATTORNEY GENERAL'S OPINION RELATING TO PROPERTY UNDER THE JURISDICTION OF THE DEPARTMENT OF HAWAIIAN HOME LANDS DHHL The purpose of this letter is to formally request that the Attorney General issue a formal opinion for the guidance of the counties on whether the state land use law, Chap. 205, Hawai'i Revised Statutes, applies to property under the jurisdiction of the Department of Hawaiian Home Lands. We also request a formal opinion on the applicability of Chap. 205A, Hawai'i Revised Statutes, the SMA law, with respect to DHHL property. This is especially important to the county planning departments because we must enforce Chaps. 205 and 205A. See H.R.S. sec. 205-12, and H.R.S. sec. 205A-22 (definition of "authority."). DHHL has asked us to approve land uses in the state land use agricultural district which would not normally be allowed under Chap. 205 and the corresponding Land Use Commission rules, unless the landowner obtained a special permit, or obtained UG 8 zQ~ Ha ai `i County is an Equal Opportunity Provider and Employer. Mr. Micah A. Kane, Chairman Hawaiian Homes Commission STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS Mark Bennett, Esq. Attorney General STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Page 2 August 8, 2008 a boundary amendment to designate the property into the urban district. We have also been asked to approve development on DHHL property in the SMA without SMA permits. Attorney General Opinion 72-21 (attached) deals with the question of county zoning authority over DHHL property, under Chap. 46, H.R.S. There is also a memorandum from the Attorney General to the (then) Department of Business and Economic Development, dated October 23, 1987, on the subject of Chap. 205A, the SMA law, and DHHL. We also have several county corporation counsel opinions on the subject of ) county zoning and DHHL. We are not, however, aware of any formal Attorney General opinion on the subject of Chap. 205, which is a separate and parallel land use control along with county zoning. Hawai'i County has been following the October 23, 1987 memorandum and not requiring SMA permits for development on DHHL property, but we believe that given the importance of these issues, a formal opinion would be warranted. Hawai'i County is currently operating under the provisions of a Memorandum of Agreement with DHHL (attached). In that MOA, Hawai'i County acceded to DHHL's position that county zoning did not apply to the basic decision of the use of DHHL property, and agreed to a procedure where DHHL could designate the zoning for its properties. This zoning would then be applied administratively by the county to determine things like proper setbacks for buildings. The MOA did provide that DHHL would obtain special permits in the state land use agricultural district, however. Par. IILG provides that "for uses allowed in the various zoning districts that require special permits or use permits, DHHL and its lessees will go through the applicable County permit procedure." The MOA is silent on the question whether DHHL, in designating zoning, must conform to the land use designations established pursuant to Chap. 205. Normally, of course, it would be improper for the counties to zone land inconsistent with the state land use designations established under Chap. 205. I Mr. Micah A. Kane, Chairman Hawaiian Homes Commission STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS Mark Bennett, Esq. Attorney General STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Page 3 August 8, 2008 We note that the use of state lands, generally, must conform to Chap. 205. Sec. 205- 4.5(a)(5), which applies to soils classified as A or B but is made applicable to other soil types by its incorporation in LUC Rule 15-15-25(b), provides that permitted uses in the agricultural district includes "public institutions and buildings which are necessary for agricultural practices". This, coupled with the prohibition of other non-listed uses in H.R.S. sec. 205-4.5(b) and LUC Rule 15-15-23, means that public institutions and uses not necessary for agricultural practices are not permitted in the agricultural district without special permits. It has been, therefore, the practice of the state to obtain either special permits or a boundary amendment when it wants to establish non-agricultural uses on state lands in the agricultural district, such as major housing projects (Kealakehe), public schools (Konawaena Elementary), and libraries (the new Kohala Library). We could furnish many other examples. The Land Use Commission, after the enactment of Chap. 205 in 1961, did designate state lands, including DHHL lands, within the various land use districts in its initial mapping. State lands, generally, at least those not under DHHL jurisdiction, are subject to the SMA law. The state has regularly applied for SMA permits for development of state parks, commercial areas, and other projects, within the SMA We also note that Ag. Op. 72-21 drew a distinction between DHHL property used for the purposes of the Hawaiian Homes Act (at that time, residential, agricultural, and pastoral lots leased to Native Hawaiians), which it determined were not subject to county zoning, and those leased to the general public for industrial and commercial purposes, which, by implication, had been determined by the Hawaiian Homes Commission not to be necessary for the purposes of the Act. This distinction appears to have been recognized by the court in Keno'o v. Watson, 87 Haw. 91, 101, 952 P.2d 379 (1998). This is a very important issue. Major public and private investments are being made directly by DHHL, and by their lessees, under the assumption that projects do not have to conform to Chaps. 205 and 205A. A decision that ordinary land use requirements need Mr. Micah A. Kane, Chairman Hawaiian Homes Commission STATE OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS Mark Bennett, Esq. Attorney General STATE OF HAWAII DEPARTMENT OF THE ATTORNEY GENERAL Page 4 August 8, 2008 not be followed can be challenged in court by individuals or organizations with standing, and could put investments worth tens of millions of dollars at risk. This suggests a very thorough and cautious decision, which may also involve a review of Ag. Op. 72-21. We hope that this letter provides enough information. We have earlier correspondence with DHHL over the MOA where we discuss some of these issues. If you have any questions, please contact Hawai'i County Planning Director Chris Yuen. Sincere ^ CHRISTOPHER J.. YUE` Planning Director CJY:pak Wpwin60/Chas 08 - Micah Kane, DHHL - Mark Bennett - AG - Opinion Attachments cc: Mayor Harry Kim Honorable Pete Hoffmann and Members of the County Council Lincoln Ashida, Esq. - Corporation Counsel Mr. Henry Eng, Department of Planning and Permitting Mr. Ian Costa, Department of Planning (Kauai) Mr. Jeffrey S. Hunt, Department of Planning (Maui) Mr. Orlando Davidson, Land Use Commission Mr. Abbey Seth Mayer, Office of Planning 9 Cl[rr_ \y, y . STATC Or HAWMI (11, 1;(I, 72°21 nC"Aft I IACI<, OF' 111L AT 1011RCY Grnr It AL n,ll r-LOOre HONOLULU. HAWAII 90013 OCtobcr 2. 1972 Mr. i.lliam G. Among, Chairman J)cp rt.mcnt of Hawaiian Home Lands Stale of Hai:-aii 530 Ilalekaueila Street Honolulu, Hawaii Dear Mr. Among: This is in response to youur question as to whether the counties may "zone" Ilacaaiian hone lands. Ile understand the question arose as a result of a rezoning action by the County of Ilawaii of certain Ilar:aiian home lands situated at Keaukaba, Milo, from resi.clential to light industrial use. The rezoning action was requested by the Commission because of the threat of tsunami and aircraft accidents as well as noise and sewage pollution. Ale further understand that the Department of Hawaiian Home Lands has in the past requested the counties to change the land use designation of other.Hawaiian home lands. As a general rule, the counties must derive their po zr to zone from some expressed or implied delegation of such po-,-:cr from the State. Aside from the question of implied power, the Legislature has granted the counties zoning poe•:ers by enacting Act 234, Session Laws of Hawaii 1957, as codified in Section Hawaii Revised Statutes. It is noted that county charters pro- vide for the exercise of zoning porters also. Honolulu Charter, Chapter. 5; Maui Charter, Chapter G; Kauai Charter, Article ):IV. 11awaii Charter, Chapter IV. However, the zoning porters of the counties are subject to Act 187, Sef ion Laws of Hawaii 19G1, ac codified in Chapter 205 of the Hawaii Rcvieed Statutes. Act 187 provided for ar,(j crcotcd a st.at-c Land (1sc Cor.mic-ion which has been cmpC)w0).ed to classify land in the State into four major land tu:c districts: II Op. Po, 77-21 YIi l1 i.~nn G, Tamonq -t-.Lpr 'is::o cr,-IvIwI• 2, 1.972 III-ban, rural, agricultural and conservation. To the extent pro- P ti ?-'e nr Ir. J rr~e 1a j?r tr -r..l t'4_~¢-~?{. -t % {tr 1-jil, LC'] b}' t)a^ LCr~lia sslon, e}ecPt within c-onscrvatlon R1st71r,_c !'.n DcP.-Ir tmcnt of Land and Natural Resources has the power under ;:cation IF.3-41, 11, r, S., to cnact xcgUlD,=;ons iilthln :ollservatlon [I] strlcts. With reference to Ilac:+aiian home lands, hoc:,ever, the .;t-.atutes arc silent-1/ On the other hand, Section 204 of the llac:'aiimi 110mcs Conmissio_n Act of 1920 provides: . all available lands shall immediately assume the status of Hawaiian ]ionic lands and be under the control of the department to be u:;cd and disposed of in accordance with the provisions of Lb-is title added) - (Underscoring Said section further provides: "In the management of any retained available lands not required for leasing under section 207(x), the depart- ment may dispose of such lands by lease or, license to the general public, including native Hawaiians, on the some terms, conditions, restrictions and uses applicable to the disposition of public lands as provided in chapter 171; pro_ vidcd, that the department may not sell such lands in fee simple except as authorized under section 205 of this Act." Section 207 of the Act authorizes the Department of Hac,'aiian Home Lands to lease to native Iawaiians as defined herein the right to the use and occupancy of llawaiian Home lands for "agri_ cultural", "pastoral" and "residential," purposes and also to grant licenses to public utilities and others for various purposes. / Indeed no state statute nor county ordinance or county charter provisions can affect- such lands unless in con- formit}' With the 11acdaiinn Homes Cormission Act of 1920, c:'hich was adopted as a compact wiLh the United Slates as a provision of the Constitution of the State of Ilowaii 1 P,r, h;i?. Liam G. Among J'.t~fn 1`vur I ubcr 7, 1972 As I unCIm..stand these are public lands in a sense. Now, is there provision in the bill }rich will Fir, Dot-:ell, There is a public land c in Hawaii u.-hose duty it is to ave chcrgc of LtthesAoner public lands. Under. this bill certain specific lands are c,•ithclrat:'n from his jurisdiction and. from the juris- diction of every cornrtit:sion except the spec,i.al one to have charge of these specific lands described in the bill, and those lands are exclusively by ) g the terms of the bill under the control of this co;:Lmission. (Emphasis supplied,) Pr. Walsh, if the gentleman will permit, if I under- stand correctly, some of the lands are already under the jurisdiction of the existing land commissioner? Mr. Dowell, All of them are, 1-Jr. Walsh. Now some of these restrictions in his jurisdiction,-and power over them is vested in the new commission. l:r. Dowell. That is correct. A review of the pertj.ncnt provisions of the Hawaiian Ilomes Commission Act indicates that the congressional intent was to create a class of lands separate and distinct from other public lands, to be utilized for the rehabilitation of the Dawaiians and to vest control over the use of such lands in the Co:nmil:aion and not in any other governmental agency. (See Sections 204, 205, 20G, 207, 208, 209 of the Hawaiian Homes Commission Act-) We further note, however., that in the management-of 'etained available lands not recuired for leasing under Sect:jon 07(a), the Department could dirpc,se of such lands by lease or icensc as provided by Chapter 17---1, 11.R.S,; for the disposition of ublic lands, and Chapter 171 reyulres in certai-n cases that county :)ttipg regulations ire complied with. ccorc}ingl~ , where the 'i-'aii.an lJomcs Commission has clctcnnincd that contain Ilatraijan 'mc lands are not nccded or required for purposes of the Act, ere appears to be no reason Why county zoning regulations should L `ply to such lands. ' . ra C?p. Nn. 72-71. 11i.)lialn C. Among ~ I•i vc• We are advised that the vepar.trlent has from time to t ij:;e: in the past appli.cd to the counti-cs for the rezoning4 of T'- M1an e, rl?!l 'r 1:. 1"r'i )tIl{-. SUCK i,dn11n1.G j ntCl: (=retcri with refcrcltCe to the poilcr of colintlc!, to "ZOlle" home lands. Ilorever, 1ee do not believe that such In}in.i tratile action is controlling in the interpretation of Lhc Ilal:aiian Homes Commission Act,. As stated in Frank Nichols, 1.3 r.tited v. Vannatt_a, 33 Haw. G02, GOG (1935) : 11 . neither official construction nor usage no matter how long indulged in, can be successfully invoked to defeat the purpose and effect of a stat- ute which is free from ambiguity, nor 1-.,ill the courts be influenced by the construction placed upon a stat- ute by the officials i..-hose duty it is to execute it where such construction is manifestly incorrect." We believe that the wording of the Hawaiian Homes ~ Commission Act indicates that control of Hawaiian home lands is vested in the Department of Hawaiian Home Lands and that subjecting Hawaiian home lands needed for purposes of the Act to county land use regulations would be contrary to the purpose of the Ha1-;aiian Homes Commission Act. Although the weight that may be given by the court to the long-standing practice in this case cannot be predicted with precision, on balance, it is our opinion that the past practice of the Department in seeking county rezoning action is not controlling in interpreting the Act, based upon Fr-an); Nichols, Limited v. Vannatt-a, supra. Since past administrative practice in seeking county rezoning actions may not be invoked to defeat the purpose and effect of the Hawaiian Homes Commission Act, we believe that Section 209 of the Act is controlling mrith reference to the use of Hawaiian home lands. Thereunder, it is the Department that has the right to say how Hawaiian home lands nceued or required for purposes of the Act are to be used and disposed of within the scope of the Act, and any zoning ordinance purporting to change the land use dcsignation or to impose restrictions on the use -_f such IIa1:'aiinn home lands 1)OUld be outside the scope of any DDWCr (gra!ILCO to counties. As earlier noted,.hoi.,cvcr, a different conclusion ppJics w)icre the Commission has determined that certain lands Op, 170. 72-21 Mr. William G. Tunonq 1'ac7C 51>: OcLoJcr 2, 1272 arc not required for purpose of the Act. In this latter situa- hl Rr ('r) '!.G ^G1Tn t" zoninU rC'711iatj Ul]17. In the in°tt)n'_- case, lie b,211ICVe that the commis-i':'n' action of requesting and initiating the rezoning ryas tantamount to a.findinq that the JiZ,l:ziian hone lands in nucstjon were no longer needed or required for purposes of the Act. Because Of the Commission's finding, it is our opinion that the County of Hawaii was authorized to rezone the lands from residential to light industrial use and may also continue to exercise zoning pwaors over such lands; however, should the Cotrmi';sion subse- quently determine that those lends are again needed or required for. purposes of the Act, the authority of the County of iJa1•)aii to zone those lands will terminate. Very truly yours, NELSONT s. rr. C1JA14C4 Deputy Attorney Generwi APPROVED: f~rar} , I_ ~ :.mot Gi )RGr 4~71I Attlarney General e) ~ Ott, i,o. 72-21 - ~7nECT El VED ~/~°,e OR,S n- f p \ / Y)t tb `J~nGiREM PRICE. ~fij?J STATE OF HAWAII DfV ,i; C°w'n E s. a. mot, DEPARTTZMT OF T ~lG fvT "IC sr Dawn er)o..~, HE kTTORtEY GENERAL STATE CAPITOL KDr~LUtll. Y4K'n 11 ~E8 ~f ~T 1~AI Snai)~ ' Onto? er 23, 1937 LEGAL MEMORANDUM TO: The Honorable Roger A. Ulveling, Director Department of Business and Economic Development FROM. John W. Anderson Deputy Attorney General SUBJECT: Applicability of County Special Management Area (SMA) permit requirements to Hawaiian Home Lands. opinion=whetherothe views expressed inrAttorney 7General's opinion 72-21 are applicable to county special management area permits ) prescribed by Part II of Chapter 205A, Hawaii Revised Statutes- lie answer the question in the affirmative. In Attorney General's Opinion 72-21 we held that lands needed or required by the Hawaii Homes Commission for purposes of the Hawaii Homes Commission Act, 1920 (the Act) are not subject to county zoning powers. We held that Section 204 of the Act is controlling with reference to the use of Hawaiian home lands and that section 2O4 vests control of these lands in the Depart- ment of Hawaiian Home Lands. In our prior opinion we also noted that the Hawaiian Homes Commission Act is made part of the Constitution of the State of . Hawaii by section 3, Article XII thereof as a compact with the United States,l/ and that no state statute or county ordinance or county charter provisions can affect such lands unless in conformity with the Act. we said that subjecting. Hawaiian home 1/ The compact to adopt the Act as part of the Constitu- tion of Hawaii is contained in the Admissions Act of March 1E, 1959, Pub L. 86-3, 73 Stat 4° The compact also provides in section 4 that the Act will be subject to repeal or amendment only with the consent of the United States, and in no other Wanner. This latter provision is repeated in section, 3 A III ;-,f the State (70nst.ituFior: r rticle i~l Hon. P.oger A. Ulvelinc October 23, 1967 Page - 2 - lands needed for purposes of the Act to county land L2 se regulations would be contrary to the purpose of the Act. 2/ The Hawaii Supreme Court recently has recognized the unique status or Hawaiian home lands under the state constitution T'f){, 9}a }rte " h 7 }.a 71.~n r _+n a- - b . 7~ 71 -1 Hawaiian home 'lcnIIS by section -004 of }h rv"-~` Department of Eawaiian Home Lands, 69 Haw. 327, rhuna ) (5rphasis added,)3/ 338 (i There is no apparent reason to alter our prior opinion. We find that county special management area (SMA) permits prescribed in Part II of chapter 205A, Hawaii Revised Statutes, by sections 205A-28 and 205A-29 do not differ in any essential respect from other county land use regulations'. The regulations were origi- nally adopted to provide "special interim controls on develop - nents within an area along the shoreline," (Section 1 of Act 176, 1975 Sess, Laws of Hawaii 385) and remain a tool for regulating land use in the State's coastal zone. 3 Part II of Chapter 205A, Hawaii Revised Statutes is part of the state's coastal zone management program which has been approved by the United States government pursuant to the Coastal Zone Management Act of 1972, Public Law 92-583. Howeve r, there is nothing in Public Law 92-583 which would purport to preempt control of Hawaiian home lands in the coastal zone. The law purports only to persuade the states to prepare and implement "management programs to preserve, protect, develop and whenever possible restore the resources of the coastal zone of the United 21 We found, however, that a request of the Hawaiian Homes Commission to rezone a portion of lands held by it from residential to light industrial use was "tantamount to a finding that the Hawaiian home lands in question were no longer needed or required for purposes of the Act," and that such action authorized the county of Hawaii "to exercise zoning powers over such lands..,." We noted, however, that "should the Commission subsequently determine that those lands are again needed or required for purposes of the Act, the authority of the County of Hawaii to zone those lands will terminate." 3/ It necessarily follows that the state as well as the counties may not impose land use controls on Hawaiian Home Lands in a manner inconsistent with the Hawaiian Homes Commission Act. i I Hon. Roger A. Ulveiinc October 23, 1987 Page - 3 - States" by providing "financial incentives to undertake the responsibility for setting up management programs in the coast=al zone>" The legislative history further states that: There is no attempt to diminish state authority: this let7i.aiatlon is to enhance state authority by encouraging and assisting the states to assume planning and regulatory powers over their coastal zones. S. Rep. No. 753, 1972 U.S. Code Cong. and Admin. News. 92d Congress, Second Session 4776. Although the Hawaiian Homes Commission may take steps to subject their lands within the coastal zone to county special management area permits and other county land use controls, attempts by the counties or other "authorities" as delineated in section 205A-22 4/ to impose their controls on Hawaiian home lands would be incompatible with the Act.S/ John W. Anderson Deputy Attorney General JWA:bnf APPROVED: Warren Price, III Attorney General 41 "Authority" in section 205A-22 is defined as the county planning commission or the county council, as appropriate. 5/ This opinion in no manner attempts to limit the counties' permit authority in waters adjacent to the Yanaiia n home lands, Memorandum of Agreement Between the Country of Ifawail and the Department ofHawailan Horne Lands Y. Purpose 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. Guidine 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 zoning 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 are 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 applicable 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: Relatine to Planning 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 al d n COH/DHHT Memorandum of Agreement Page 2 1 comments, and to the Hawaii County General Plan, and other officially adopted plans such as Community Development Plans. All land uses on DHHL property will 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 adopted 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 normal land use controls will be applied by Hawaii County to DHHL property according to the zoning district selected by DHHL. Except as specifically provided in the Agreement, DHHL 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 applications. F. The standards 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 require special permits or 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 terns of its leases requiring conformity to applicable laws and regulations, if requested by the County. Ongoing violations and failure to comply will be referred 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. I C®H/DHHL Memorandum of Agreement Page 3 IV. Relating to Public Facilities and Infrastructure Serving Hawaiian Biome Lands A. In the development of future projects, DHHL will construct public facilities in accordance with County standards. 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 all future DHHL infrastructure constructed according to County standards. 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 standards, the County and DHHL 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 sl ~ I C®H/DHHL Memorandum of Agreement Page 4 1 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 Lands 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 regarding 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. Relating to Real Propertv Taxes A. Homestead lessees on Hawaiian home lands are 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 all 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 paragraph 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 date may be extended by mutual agreement of the parties. D. It is understood that the County's waiver of interest and penalty charges 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 paragraph 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. I COH/DHHJ Memorandum of Agreement Page 5 G. The County and DHHL shall work to establish a customer trust fund by July 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 of new 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, information, 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, further clarify or waive any term or condition of this agreement, provided such action does not violate any statutes, ordinances, or binding rules 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 thereof, the parties have entered into this Memorandum of Agreement on this day of , 2002. COUNTY OF HAWAII DEPARTMENT OF HAWAIIAN HOME LANDS B<~y By Harry K Iayor R ardr oon, Chairman H waiia mes Commission APPROVED AS TO FORM: _ Corporation Counsel / Q puty Attorney General j 41 i