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Home My WebLink AboutCOM 0063.001 2012-2014 comments on Comm. 63 re. Public Land Development Corporation (PLDC) for Hawai'i County Council Planning Committee 1:00 PM Tuesday, January 8, 2013 by Cory Harden,Sierra Club, Moku Loa Group,PO Box 1137,Hilo, Hawaii 96721 mh(7interpac.net 808-968-8965 How do County laws and land use policies apply to PLDC proposed developments? Not much! PLDC is probably exempt from county planning and zoning ordinances; county building permits; subdivision rules and regulations; community development plans; and more. There are no neighbor island people on its board. And counties that oppose PLDC have been threatened with reductions in Transient Accomodation Tax income. I only know of two things that might slow down PLDC. One is no source of drinking water for a proposed development. The other is a requirement that PLDC "coordinate" public land planning activities with county planning departments, and with county land use plans, policies, and ordinances. But this requirement is vague and weak. County and State laws have protected places like Honoli'i, Kealakekua, Na'alehu, O'oma, and Pohue. But now those laws can't stop PLDC. PLDC projects are "exempt from all statutes, ordinances, charter provisions, and rules of any government agency [County or State] relating to special improvement district assessments or requirements; land use, zoning, and construction standards for subdivision development, and improvement of land; and the construction, improvement, and sale of homes thereon.." [Hawaii Revised Statutes 171C-19J PLDC threatens agricultural, shoreline, and conservation land. It threatens public health and safety. It throws out broad-based, long-term planning. If developers make promises, then break them, PLDC has no incentive to hold their feet to the fire, since PLDC loses money if projects fail. PLDC can operate in secret, since it is exempt from the procurement code, meaning citizens can't find out what's in PLDC contracts. Citizens have little recourse with PLDC—a few minutes'testimony at a meeting. Or comments on environmental studies that describe bad projects, but have no power to stop them. No contested case hearings; no lawsuits. In short, the County can't protect the people and the land from PLDC.We commend County Council for passing a resolution to repeal PLDC, and urge you to keep the pressure on the State Legislature for repeal. Comm. No. (3. Ref. To: Fl PC Ref. Date A 0 8 20f1 Cn=ulotte A Carter-Yarnaucni Acting Director Fesearcn i_oc5i58, 066r Revisor (805)587-06,7C Fax (805)587-0581 LEGISLATIVE REFERENCE BUREAU State of Hawa!, State Capitol. Room 446 415 S.Berelarria Street Hcnc!ciu H3Wiaii 56813 October 10, 2012. MEMORANDUM o: Honorable Fes [tiara Senator. 9th 1)istrict FROM: John NIcsrse■ Research Attoruc' SUBJECT: Public Land Development Corporation Ibis responds to ∎our request for information regarding the Public Land Development Corporation (PLDC). Specifically. You wanted to know what laws the PI.DC is exempted from with when developitt■' lands under itsjurisdiction. in relevant part_ section i 71C-19. l law-aii Re■iscd Statutes (II RS). provides that: i Projects pursuant to this chapter shall be exempt from all statutes. ordinances, charter agency relating s., �11iZC1 provisions.Oil`, :ill(} rules of any government ,_ latin to special imps seinent district assessments or requirements: land use. zmtim_. and construction standards for subdivisions, development. and improvement of land: and the construction, irnlrJr,eiirent, and sale of homes thereon .... Please be advised that the information provided in this memorandum is not intended to be an exhaustive list of exemptions provided for by section 1710-I9, HRS. but rather a sample of the various exemptions provided to the P1.DC_ with a particular focus on the City and County of Honolulu. For a definitive legal opinion. you may wish to consult with the Attorney General. Special Improvement Districts Section 46-80.5. FIRS, authorizes any county havinrrt a charter to enact an ordinance authorizing the creation of special improvement districts.' The purpose of creating the special improvement districts is to provide and finance: Section 46-5.1. ial. Haww'ali Revised Statutes. I lonorable Les lhari ? October 10. -20 12 iSittpplemental maintenance and security services and such other improvements. sere ices. and facilities within the special improvement district as the council of the count}- deter nines will restore or promote business activity in the special improvement district and making and financing improvements therein.'. flue counties may also levy a special assessment on property located within the special improvement district to finance the maintenance and operation of the special improvement district.' Accordinyly. the City and County of Honolulu enacted chapter 36. Revised Ordinances of Honolulu (ROFI). which generally governs the establishment of special improvement districts and the levying of special assessments. Proceedings for the establishment of a special improvement district are instituted by the City Council upon a petition signed by landowners owning land within the proposed district Section 36-3.1, ROH, provides that special assessments are based upon. among other things, the benefit received by the parcel of land and the cost of supplemental services and improvements ements benrtining the parcel. The District Board determines the annual amount due from each landowner subject to the special assessment. An example of a special improvement district is the Fort Street Mali Business Improvement District, established by Ordinance 02-48. Property owners on the Fort Street Mall unanimously agreed to create the improvement district and assess themselves to fund private security and provide for maintenance Services. I.nder section 1710-19. FIRS. PLDC projects within a Special Improvement District. such as the Fort Street Mall Business Improvement District, would be exempt from paying the special assessment. Land Use Section 171C-10, FIRS, exempts the PI,DC from statutes. ordinances, charter provisions, and rules relating to land use. Land use is generally governed by chapter 205. HRS. Accordingly, the PLDC would not he subject to the permissible use restrictions for lands designated as urban, rural, agricultural. and conservation.? Further, the PLDC would appear to he exempt from part ill of chapter 205. MRS. which regulates important agricultural lands. Therefore. the PLDC could possibly develop agricultural lands that would otherwise he eligible firr designation as important agricultural lands. Section 46-80.5(b).I lawaii Revised Statutes. `'Section 36-2.1(h), Revised Ordinances of Honolulu. Section 36-3.2(b)(1), Revised Ordinances of Honolulu. General information regarding the Fort Street Mall Business improvement District Association may he found at http:-Fortstrectinall:org index.php?option_=com content+ view=-atticle&id-=22&1 tern id-3=r. Sec sections 205-2 and 205-4.5.Hawaii Revised Statutes_ RB 1-lonorable Les Ihara - October 16. 20 12 The P1 )C is likely also exempt from chapter 2tJSA. 1IRS. which regulates coastal /one manacement. Section 205A-5. I IRS. requires agencies to enforce the policies and objectives of the chapter and any rules adopted pursuant thereto. The objectives include the protection and preservation of historic resources. scenic and open space resources. valuable coastal ecosystems. beaches, and marine resources.y Lach objective is also accompanied by a list of policies, For instance, the policies rcctarding the protection and preservation vation of historic resources arc to: • Identify and analyze significant archaeological resources: • Nlaxinuze information retention through preservation of remains and artifacts or s than age operations:. and • Support state goals for protection. restoration. int irpretatioll. and displar of historic resources.IU Similarly, the PLDC is likely exempt from part 11 of chapter 205A, !IRS. establishing guidelines and permits requirements for proposed developments in special management areas. The i!tiidcliil s L.;tablislled based tpoi1 flndin?L) that special Controls within an argil of the shoreline .11'2 neCiSS0' [0 avoid permanent losses of valuable resources and to ensure adequate access to publicly usvued or used beaches, recreation areas, and natural reset'\'2s." The counties are tasked with implementing special management area use permit application procedures. conditions under \finch hearings must be held, and the time periods within which the hearing and action for special management area use permits shall occtit Further. the PLDC would likely he exempt from the provisions regarding shoreline setbacks. includirl'g tilt. prohibition of structures and the procedures tOr acquiring a sarianee. in hurt lit of chapter 2i:tS.\. 1IRS. Zoning Section 46-4, HRS, delegates to the various counties _general authority to oversee Bonin o. within the respective counties. For example, the City and County of Honolulu enacted its coilin_?, regulations ions pursuant to section 6-1514 of the Revised Charter of Honolulu. which provides that the cite council shall "enact ZOili11E? ordinances which shall contain the necessam provisions to carry out fi purpose of.the general plan and development plans." Accordingly, pursuant to section 171C-19. I IRti. the PtDC would appear to be exempt from the following provisions ofChapter 21, RC)t-1, the Land tine Ordinance: • The application and processing procedures for major and minor permits:17' section 205A-2(b). I Iavaii Revised Statutes. Section 205A-_(c), ll.-l\\ Revised Statutes. 10 Section 20.5A 2tl'i(2), t1;ilvall Revised Statutes. 'i Section 205A-21, Hawaii Revised Statutes. `'Section 205A-29. Hawaii Revised Statutes. 'Sue chapter 21,article 2, Revised Ordinances of Honorable Les lhara -4- October 1(1. "_-1012 • Permitted uses and structures within zoning districts established pursuant to chapter 21. article 3, ROH:14 • Standards established relating to land development that are generally applicable to any use or site, irrespective of zoning district, including regulations relating to retaining walls, structure heights, and outdoor lighting' 1, • Development and design standards for particular uses within zoning districts;H • 01l-street and loading standards established to minimize street congestion and traffic hazards. and to provide safe and convenient access to residences, businesses, public services, and places of public assembly: • Re; ulattun_s controlling the erection, location_ and maintenance of outdoor signs nut manner designed to protect and promote the public welfare, health. safety, and morals;'s and • Regulations for development in special districts, which are intended to protect and enhance the physical and visual aspects of an area for the benefit of the community:9 Construction Standards Section 1710-19, HRS, also exempts Pt.1)C projects from construction standards, While the term "construction standards" is not defined in the I IRS. this exemption presumably applies to the State Building Code, Section 107-24, [IRS. requires the State Building Code Council to establish a comprehensive state building code. Accordingly, the Department of Accounting and General Services, under which the State Building Code Council is placed, adopted chapter 180 of title 3, Hawaii Administrative Rules, entitled "State Building Code."''' The code establishes: 'vi ininlum requirements for the construction. alteration_ movement, enlargement, replacement, repair, equipment. use and occupancy, location, maintenance. removal,and demolition of every building or structure.'1 The State Building Code includes the latest editions of the state fire code, the uniform fire code. and the international building code. - The PLDC is also likely exempt from the amendments made to the State Building Code by the various counties, as authorized by section 107-28. HRS. See chapter 21,article 3, Revised Ordinances of Honolulu. Sue chapter 21,article 4. Revised Ordinances of Honolulu. ''See chapter 21,article 5, Revised Ordinances of I lonolulu. 1'Sue chapter 21,article 6. Revised Ordinances of Honolulu. 'y See chapter 2.1,article 7. Revised Ordinances of Honolulu. See chapter 21,article 9, Revised Ordinances of Honolulu. ihe building code nmv he accessed at tri: ,'hawaii.go'da s;'biecomments'approved state buildin _code 2010.pdt; 21 Section 3-1311-2, Hawaii Administrative Rules. Section 107-25. Hawaii Revised Statutes. c.ka lionorable Les II litfa October 1( , 201 --' As+itin. the precise scope of the 11.1)C's exemption trom construction standards is unclear, For example. section I 71C-19. Ii RS. might be interpreted to exempt the PI.DC pro1ects4rom the \s age and hour requirements for emploNtes on public works. Among other things. chapter 104_ ii KS. provides that "fe Ivery laborer and mechanic performing work on the job site for the construction ans public work project shah be paid no less than prevailing wages."-'' The chapter also establishes limitations on the number of hours that laborers and mechanics may work without receiving overtime p Further. the chapter Ctii',11-)ii:dli,s,-; iz_overnment.til contriicting agenc, responsibilities regtirding and ocrtime compensation disc to laborers and mechanics.- Taxes the P1,DC is spccificallY he fronl paving any stale 1:-Ixt2s.— ironmental Laws We note that concern has been expressed hether the PFDC is uxempt from environmental laws. However_ chapter 171C. FIRS, does not explicitly exempt the KIK' from laws regarding environmental impact statements. In fact. the pwc looted a iieneral information announcement on August 27. 2012. which in part states that the is not exempt. rrum environmental laws.— Further, the hicitinentiv .lskcal Oucstion.c section of the PLDC's website Jittirins tint the PI.DC is subject, to environmental impact statement requircments:' Public Hearings We note that the exemptions oranted to PI.DC projects under section 17IC-19. I IRS. appear to encompass a number of otherwise required public hearing processes. .1 hese would include. for example. public hearings that otherwise would accompany._petitions for amendments to district boundaries' and variance applications within shoreline setbacks.' Furthermore, it does not appear that chapter 171C. 1116, requires the PLDC to conduct public hearings for its projects. Section 104-2(h), Hawaii Revised Statutes. See also title 12. chapter 22. Hawaii Administrative Rules. entitled "VVae Detenninations and the Administration and lad-orcement otiChapter 104. 11w:an Revist.sd Statutes. Section 104-2(c), Hawaii Revised Statutes. Section 1 01-2 , Hawaii Revised Statutes. -6'Section 171C-I8, Hawaii Revised Statutes. the aeneral inlormation announcement tui\ he accessed at itttn:-1-awa 0 soy dinr ri dean nuance me as Pt.1)('-Gej Info.pdf Oucstions s etiono he PI.DC's wensite may he accessed at http: rpdr 11 Sect ion 205-4. thiwaii Revised Statutes. Section 20 ,.\-43.5. Ilawaii Revised Statues Ilonorahle Les Mara -6- t)ctober I6, 20 If you have any questions or require further assistance, please contact me by phone at 587-0666 or by email at j.morsev( capitol_hawaii.eoy. APPROVED: Charlotte A. Carter-Yunauc h i Actin!). Director