Discussion Draft: Conservation District Management Plan. Robin Foster, PlanPacific, Inc., for the state Department of Land and Natural Resources. October 1997. Available from Island Printing Center, 737 Bishop Street, Honolulu; $22.68 plus postage (telephone: 523-0902).
For the last four and a half years, Robin Foster of PlanPacific has been laboring under a contract with the Department of Land and Natural Resources to prepare a plan to overhaul management of lands in the state Conservation District. The draft plan is out for public review; comment will be accepted until March 15.
In the plan, Foster and his associates cover a wide range of issues and topics. They take a close, critical look at Conservation District rules and statutes, and come up with a set of recommendations for their revision. They provide a historical review — the best this author has seen — of the evolution of land use laws and regulations into what is now the complex web of Conservation District rules and statutes. And, using a wide assortment of data bases available to users of geographic information systems, they have prepared maps of lands in the Conservation District, along with recommendations for changing the subzoning of many of those lands.
After years of watching the DLNR engage in one after another series of mostly fruitless efforts to bring meaningful changes to its management and regulation of Conservation District lands, one can only ask: Why wasn’t this done sooner?
Timing aside, the plan represents a giant step forward in moving the regulation of practically half the land in the state from a base of near whimsy to one of reasonableness and predictability. With most changes proposed involving the amendment of the DLNR’s administrative rules, the Land Board has few excuses for not moving forward on the recommendations Foster outlines. May they do so quickly.
Limited No More
The most radical change Foster proposes would likely be the one to eliminate the Limited subzone. As he notes, this subzone was intended to include lands of high hazard — steep sloped parcels (of greater than 40 percent slope), flood zones, and volcanic hazard areas. However, not all, or even most, of steep sloped Conservation land is found in this suubzone: “only one-third of Conservation District lands with slopes of 40 percent or greater currently lie within the Protective and Limited subzones,” Foster writes.
Current Conservation District rules provide an exemption for people wanting to build houses on land in Limited subzone, so long as the land is in a flood zone. This exemption, written into the rule changes adopted by the DLNR in 1994, “has had the illogical effect of specifically allowing residential use in identified flood areas,” Foster writes.
Instead of the rules designating a series of land uses permissible in the Limited subzone, Foster proposes placing in the rules a much broader screen intended to address natural hazards wherever they occur in the Conservation District, regardless of the subzone into which a given parcel has been placed. “In essence,” he writes, “this alternative would replace the subzone category with specific performance standards relating to steep slopes and permit criteria relating to other hazards to the environment. The performance standards and the permit criteria would be applied in all subzones throughout the Conservation District… The advantage of using permit criteria and performance standards is that they can be applied uniformly for specific conditions, regardless of subzone.”
The performance-based standards Foster proposes would impose restrictions on the development of Conservation District land having slopes of 20 percent or more. The restrictions would increase in relation to the slope; on slopes of 40 percent or greater, nothing would be allowed to be built. And while the standards would represent an increase in regulation for Hawai`i, as Foster notes, the proposed standards “are liberal, compared to those of other jurisdictions.” Elsewhere, slopes of 15 percent or less are commonly used as a trigger for restrictions, he writes, while a standard text for planners contains model regulations that forbid construction on slopes higher than 30 percent.
New Objectives
To flesh out the Conservation District purpose set forth in state law (Chapter 183C), Foster proposes a list of objectives, divided into three separate sets. The first set of objectives is intended to promote the preservation of “important natural resources,” including areas of high water recharge; aquatic resource streams; wetlands; native-dominated vegetation and habitat for native plants and animals; sand beaches; coral reefs; natural landforms (mountain ridges, slopes, cinder cones, headlands, and the like); “significant” cultural sites, such as heiau, shrines, and burials; and “natural landscapes.”
The second set of objectives concerns the prevention of damage to land and human settlement. In this category are the specific objectives of preventing soil loss and reducing flood hazards to existing and planned downstream settlements.
The third set of objectives is intended to “provide for land use.” The first of these is to provide “for multiple uses of Conservation District lands in a manner which sustains resources for future generations. Typical uses of the Conservation District include natural resource management; water source and conveyance facilities; forestry; and outdoor recreation, such as hiking, hunting, and water sports.” The second objective in this category is to provide “for public purpose uses, such as roads and electrical transmission corridors, where there is evidence of a compelling need to locate them in the Conservation District; provided that such uses shall comply to the maximum extent feasible with the Conservation District permit criteria and guidelines.”
The last of these objectives — concerning land uses and public purposes — is certain to be the most controversial, reflecting the fact that proposals to develop utility corridors, antennas, and roadways (among other things) in the Conservation District have generated some of the most heated and lengthy disputes the Land Board has had to deal with.
To be sure, the controlling law allows for such uses. Foster attempts to mitigate this somewhat by requiring compliance with Conservation District permit guidelines “to the maximum extent feasible.” The intention is praiseworthy, but the effect is hardly comforting. What Hawaiian Electric or the state Department of Transportation deems to be “maximum feasible” compliance with Conservation District guidelines may well fall far short of the mark so far as conservationists and environmentalists are concerned.
Hardship Cases
A similar problem with vagueness arises in the discussion of “hardship,” which Foster proposes be allowed as a justification for an expansion of the existing rule on variances. Now, only “temporary variances” for periods of a year or less are allowed by rule. Foster proposes changing this, to allow permanent variances along the lines found in most land use regulatory systems. “The purpose of the variance,” he writes, “is to build in discretion, where a proposal has not been anticipated in the regulation or varies in some way which does not call into question the purpose and intent of the regulations. The variance provides applicants an administrative avenue to remedy a perceived grievance over the regulations or their enforcement. It has the effect of making the regulatory system as a whole more defensible against legal challenge.”
Foster proposes criteria for variances in the Conservation District, which would allow the Land Board to grant variances “if the Board finds that, due to the particular shape, topographic condition or other physical characteristic of the subject property, strict compliance with the rule would result in hardship to the owner. The hardship must be related to the physical characteristics of the land: inconvenience or economic hardship to the owner shall not be used as the basis for granting a variance.”
Under this scheme, the board would be able to grant a variance if the applicant “would be deprived of a reasonable use if the provisions of the rule were strictly applied,” so long as the request would not alter “the essential character of the area.”
But what type of hardship claim is to be made if not one on the basis of inconvenience or cost? Indeed, almost by definition, hardship involves added difficulty or cost.
Another concern arises over the expansion of the opportunities for variance, and that is that the board will find itself in a situation much like that which existed before the rule changes in 1994. At that time, an applicant could propose any conceivable use for land in the Conservation District and it would be processed as conditional use permit application. One of the major advances in the 1994 rules was to prevent applications for land uses other than those specifically called out in the rules. If this is now to be loosened up, the challenge is to find criteria on variances that will prevent a reversion to the bad old days of anything goes. It is not clear yet that what Foster proposes will do this.
Volume 8, Number 9 March 1998
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