What can be done with our land, who decides and why. We also ask whether our process and rules result in the best decisions for future generations.
Stewardship of the land is so central to the Hawaiian identity that the State of Hawaii has established as its motto “Ua Mau Ke Ea O Ka Aina I Ka Pono,” translated literally to “The Life of the Land is Perpetuated in Righteousness.”
While private land ownership has proliferated in the centuries since Capt. James Cook reached Hawaii, private rights are not absolute. Hawaii’s government has decided we need a process to try to ensure that we make best use of this most precious of resources. In Hawaii, every potential land use, no matter who the landowner is, starts in the same place: a system of land classification called land use districts.
Land Use Districts
Early in Hawaii’s statehood, the Legislature determined that more rigorous controls on development of the state’s land were needed to prevent exploitation. In 1961, lawmakers created a statewide zoning system as part of the state Land Use Law, then known as Act 187 and now found in Chapter 205 of the Hawaii Revised Statutes. The law created the nine-member, quasi-judicial volunteer Hawaii Land Use Commission as part of the Hawaii Department of Business, Economic Development and Tourism. It also laid out a number of the rules and regulations that govern the use of land.
The commission’s role is to represent the interest of the state and the public by “preserving and protecting Hawaii’s lands and encouraging those uses to which lands are best suited.” The commission does this primarily by classifying parcels into one of the state’s four land use districts — urban, rural, agricultural and conservation. The districts are not physical locations but rather categories designed to describe how a parcel should be used. The commission also passes judgment on requested amendments to the boundaries of all conservation lands, those agricultural lands deemed to be “important,” and all parcels larger than 15 acres, regardless of their prescribed land use. Legal disputes between landowners and regulators are heard by courts within the Hawaii Judiciary, including the Hawaii Supreme Court.
There are nearly 2 million acres of land in the Conservation District, according to 2006 commission data, around 48 percent of the state’s 4.1 million acres. Conservation District lands include places like forests and water reserves, and the rules governing the district are designed to protect resources, wildlife and open spaces. Section 15-15-20 of the Hawaii Administrative Rules, those governing the Hawaii Department of Business, Economic Development and Tourism, describes the conservation district as lands “necessary for the conservation, preservation, and enhancement of scenic, cultural, historic, or archaeologic sites and sites of unique physiographic or ecologic significance.”
The state government regulates zoning and non-conforming use permits on conservation land via Section 183Cof state statutes and through the Hawaii Department of Land and Natural Resources‘ Office of Conservation and Coastal Lands and Board of Land and Natural Resources.
The state government has further subdivided the Conservation District into five smaller categories called “zones” or “subzones”: protective, limited, resource, general and special. The first four zones are arranged from the most environmentally sensitive (protective) to the least sensitive (general). The “special” zoning designation is used to allow a unique project on one specific site.
Sections 13-5-11 to 13-5-15 of the administrative rules govern management of the Conservation District and identify the criteria for the five subzones. Sections 13-5-22 to 13-5-25 lay out the details of how much government oversight is required for different uses and activities — everything from landscaping to the building of single-family residences — for each of the four main conservation subzones. Some activities require no permit, some require a site plan approval, some require a departmental permit and some require a board permit and/or a management plan.
An Environmental Assessment is required for any proposed uses within the Conservation District, a shoreline area as defined by Section 205A of state statutes or for any project that will use public land or public funds. Environmental Assessments, described in full in Section 343 of state statutes, are written evaluations of whether a use will have an impact on its surrounding environment. If a potential impact is anticipated, developers are required to produce a lenghthier, costlier, time-consuming Environmental Impact Statement, which includes the “effects of a proposed action on the economic welfare, social welfare, and cultural practices of the community” and includes mitigation measures and alternatives.
Documents are presided over by the Environmental Council, a governor-appointed board that serves as a liaison between the public and the Hawaii Department of Health‘s Office of Environmental Control Quality, which maintains records of all assessments and impact statements. As of April 2010, there were more than 4,000 on file. The OEQC does not track what happens to projects after they are filed and on the books. However, government offices on the county, state and federal levels are ultimately responsible for deciding whether a project passes muster.
In addition to lands that are in the conservation district, areas near the shoreline are preserved for the public under the Coastal Zone Management Program, described in Section 205A of the Hawaii Revised Statutes. The program seeks to find a balance between recreation, historic and natural resources, beach and ocean protection and economic development.
Land use decisions in the coastal zone are divided into more stringently managed special management areas that can extend several miles inland and requires permits for a number of activities that are generally allowed in less sensitive areas. Also, public access to the beach — everything below a legal shoreline defined as the “highest wash of the waves” as evidenced by debris or vegetation — is guaranteed by state law.
Any proposed developments in the shoreline area are required to obtain a certified shoreline and be outside of a minimum area that shall remain clear, known as the shoreline setback. The county governments are primarily in charge of implementing the state law through their permitting agencies.
There are more than 1.9 million acres of land in the Agricultural District, according to 2006 commission data, around 47 percent of the state’s 4.1 million acres. Agricultural District lands are intended for the cultivation of crops and other activities, some of which can range far afield from traditional farming.
The Hawaii Department of Agriculture promotes Hawaii’s agriculture and aquaculture industries. The department inspects for invasive species in imported plants and animals, provides financial support to farmers in the form of loans, assures the quality of produce, and administers agricultural resources like irrigation systems.
Section 205-2 of state statutes includes in its list of appropriate activities for this district animal husbandry and game and fish propagation; aquaculture; wind-generated energy; biofuel production; solar energy facilities; scientific and environmental data collection and monitoring facilities; agricultural parks; and agricultural tourism.
The district is further categorized into the most productive, Class A and B, or less productive classes, C, D, E and U, as defined by the Land Study Bureau. The bureau’s detailed classification studies, which factored in criteria like soil profile and rainfall, were conducted between 1965 and 1972, and have served as the primary agricultural ratings as far as state law is concerned for the intervening decades.
The identification of so-called “Important Agricultural Lands” — those capable of producing high agricultural yields — was mandated by voters after the 1978 Constitutional Convention, but the project was not undertaken until after the state in 2005 passed Act 183. The act instructed the counties to define important agricultural lands within their jurisdictions, and the results will be used to create new land use policies relating to agriculture.
The counties are authorized to amend land use district boundaries for lands smaller than 15 acres in the agricultural district, provided those lands are not categorized as “important.” The counties are also empowered to determine zoning on all agricultural, urban and rural lands, provided that the uses they authorize are in compliance with state law, an agreement described in Section 46-4 of state statutes.
Urban and Rural Districts
There are approximately 200,000 acres that fall into the Urban District and another 11,000 in the Rural District, according to 2006 commission data, some 5 percent of the state’s 4.1 million acres of land. The administration of both Urban and Rural district lands is left to the counties, on the condition that zoning adheres to a narrow definition that limits rural density to not more than one single-family dwelling per one-half acre.
Each county in the State of Hawaii has its own rules and laws governing the use of land on its particular island or islands:
On the Big Island of Hawaii, the Zoning Code serves as the county’s primary land use document.
On Kauai, the Kauai General Plan and Comprehensive Zoning Ordinance govern land use.
On Maui, Title 19 of the county code describes zoning regulations.
On Oahu, Chapter 21 of the Revised Ordinances of Honolulu regulates land use in the City and County of Honolulu. In addition to setting permit requirements, the land use ordinance outlines zoning districts, including preservation, agricultural, country, residential, apartment, resort, business and industrial, each with their own sub-zones and restrictions.
Impacts of Land Use in Hawaii
Land use decisions are spread among numerous agencies at varying levels of government. Everything starts with the Hawaii Land Use Commission, which in turn delegates power to the Hawaii Department of Land and Natural Resources and the individual county governments. The Hawaii State Legislature decides on changes to the land use laws, and the state government, presided over by the governor, administers the laws. State and federal courts rule on disputes between landowners and regulators.
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