Act 284 Establishes Stricter Review for Potential Legacy Land Projects

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Starting this year, applicants competing for the $2.3 million available from the state’s Legacy Land Conservation Program have a new hoop to jump through.

Before Act 284 became law earlier this year, the state Board of Land and Natural Resources had the option of requiring agencies receiving Legacy Land funds to provide a conservation easement, deed restriction, or covenant to “an appropriate land conservation organization, or a county, state, or federal natural resource conservation agency.”

With the passage of Act 284, four state agencies — the Department of Land and Natural Resources, the Department of Agriculture, the Agribusiness Development Corporation, and the Public Land Development Corporation — have been added to that list.

What’s more, Act 284 now requires the Land Board to require those seeking Legacy Land funds to provide a conservation easement, deed restriction or covenants to one of those agencies. (Exactly how the particular agency to receive the easement is to be chosen is not spelled out in the law.) However, should the Land Board or any of the agencies required to be provided an easement decide to opt out of the requirement, they may do so.

The point, says Sen. Donovan Dela Cruz, author of the legislation, is to have the agency affirmatively reject the easement if it does not wish to retain it.

“If someone has ag land and they used state money [to acquire it], if the DOA or ADC has an easement, they can’t develop or use it for anything other than ag,” he says.

An easement would only go to the PLDC if it’s appropriate, he adds. The whole point of the Legacy Lands program is to purchase lands or conservation easements that will protect natural or agricultural areas from development. When asked what kind of Legacy Land project would be appropriate for the PLDC to hold an easement over, Dela Cruz told Environment Hawai`i,“You don’t know what people are going to apply for. We included them [the PLDC] just to make sure it’s there.”

Act 284 allows the DLNR, ADC, PLDC, and DOA to get an easement to “any Legacy Lands projects where they need to be involved,” Dela Cruz told the ADC at its board meeting on July 11.

Legacy Lands program administrator Molly Schmidt, however, interprets Act 284 a little differently. The act requires Legacy Land applicants to consult with the DLNR, DOA, ADC, and PLDC regarding the maximization of public benefits of a proposed land acquisition project. It does not, however, require applicants to provide an easement to any of those organizations, she says.

The act merely “sets forth what sorts of deed restrictions can be placed on each kind of project, and what entities can be holders of these restrictions,” she wrote in an email to Environment Hawai`i.

This year’s slate of potential Legacy Land applicants had to submit consultation forms to the four agencies in early August. Those forms had to accompany their applications, which were due last month. According to Schmidt, a dozen potential projects planned to apply.

The Hawai`i Islands Land Trust is proposing two conservation easement projects this year. Scott Fisher, the trust’s conservation program manager, says that none of the consulting agencies indicated they want to hold an easement, deed restriction, or covenant and most of them had no comment at all.

He adds that it is too soon to speculate on how the new law will affect future projects.

Teresa Dawson

Volume 23, Number 4 — October 2012

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