Non-Profits Face New Screening Process For Land Use Applications
For the past year, the issue of how much non-profits should be charged for using state land had been unresolved, until now.
At IRS September 11 meeting, the Board of Land and Natural Resources accepted a new policy drafted by it’s Land Division to address how rent will be determined for non-profit leases, and the criteria that will be used for determining qualified non-profits and the par–cels they can lease.
While board members and a representative from the Hawai’i Nature Center had several specific concerns about how the policy would be applied, all agreed that the division’s draft was a good start, and that implementation would be the best way to work out any bugs.
The first debate among members of the Land Board about whether a non-profit should receive nominal or fair market rent occurred when rent determination for parcels used by Easter Seals and the Roman Catholic Church carne before the board at its August 21, 1997 meeting.
These examples “Easter Seals and the church reflect the lack of standards and crite–ria for decision-making…,” states a September 11 staff submittal. “Without a policy and clear criteria, staff has become increasingly uncer–tain on how to proceed with the issuance of new leases and revocable permits to non-profits as well as how to handle existing non-profits which are claiming an inability to pay the rent as outlined in their leases.”
According to this submittal, the policy applies to new, directly negotiated leases and revocable permits, and existing non-profit leases, which were originally issued through direct negotiation and where the lessee is dissatisfied with the rent amount. This policy applies only to state lands managed by the Land Division.
Under the policy, a non-profit is qualified to lease state lands if it is incorporated under Hawai’i laws; has 501(c)(3) status from the IRS; is licensed or accredited in accordance with federal, state or county statutes; is in good standing with state departments; has no poli–cies that discriminate against anyone on the basis of race, creed, color, national origin, sex or physical handicap; provides services which benefit the public; and has received funding from a government agency or Aloha United Way and/or a major private foundation for at least one of the past three years. (If the non–profit is unable to meet this requirement, it must prove its qualification by providing two or more grants or subsidies from non-major funders, two or more staff or board members who possess significant non-profit experience, or some combination of these, which illustrate the non-profits ability to perform proposed services; and showing administrative expenses as a percentage of total expenses no more than 20 percent.)
If more than one qualified non-profit is interested in a particular-parcel, a lottery will be held.
Nominal annual rent amounts would be determined by a point system: a non-profit that earned two points would pay for a year; one point would get 50 percent off air marker rent, and zero points would get 100 percent of fair market rent. These points would be based on two criteria designed to determine a non-profit’s benefit to the public.
Tamar Chotzen, executive director of the Hawai’i Nature Center, testified that she was terrified that the “public benefit” rating would be too subjective.
“You and I may figure today that child care is not a priority…,” she said, “when it may be our number one priority.”
When reopening a non-profit’s rent, changing it to fair market value could put a non–profit out of business, she said.
Chotzen discussed a number of other con–cerns. She suggested that the division should have a standardized formula for determining the administrative expenses of 20 percent re–quired for qualification. “Every non-profit can come up with three different answers to the same question when asked,” she said.
She also questioned the state’s taking part of money generated from a non-profit’s use of state lands, and the lottery system’s ability to determine the best lessee.
Chotzen and board member Kathryn Whang Inouye were also concerned over lottery procedure. Whether an applicant should have a conservation district use application or an environmental assessment done before or after the lottery was debated.
With his assurance to work on these and other concerns raised during the meeting, the board voted unanimously to accept to policy.
Over objections of North Shore community groups, the Board of Land and Natural Re–sources on August 28 granted Hawaiian Elec–tric Company two easements for overhead transmission lines near Pupukea.
Chairman Michael Wilson and Big Island board member Russell Kokubun voted in the minority to defer the action because of HECO’s failure to present an updated visual simulation of the project to the North Shore Neighbor–hood Board, which it had asked HECO to do when the item was last brought to the Land Board in early July.
HECO has held a Conservation District Use Permit for this project since August 23, 1996, and the related Environmental Impact Statement had been accepted by the county in 1993. However, a number of community groups – including Life of the Land and the Outdoor Circle – had, until the August 28 BLNR vote, halted progress on the project, citing the North Shore community’s lack of understanding and acceptance of the project and its potential impacts on the area’s special design distinct, which requires utility lines to be installed underground.
More than a dozen public meetings had been held for this project between March 24, 1992 and August 12, 1996.
“After a final evaluation of cost, environ–mental concerns, community acceptance and permitting requirements, HECO selected a midlevel mauka overhead alignment for the project,” O’ahu Land Agent John Dooling wrote in the August staff submittal.
This alignment was not presented in any of the public meetings, Life of the Land’s Henry Curtis said at the August meeting. Therefore, another visit to the North Shore Neighbor–hood Board to prepare the community for what was to come was not only appropriate, but had been promised by HECO at the Land Board’s earlier July 10 meeting.
DLNR staff had brought this issue to the Board at its February 13, 1998 and July 10, 1998 meetings. Both times, the action was deferred pending presentation of a visual simulation by HECO to the Neighborhood Board.
The North Shore Neighborhood Board, however, had been too busy to fit in a HECO presentation on its July agenda. The earliest meeting at which the board could accommodate one would be on September 22, 1998.
HECO apparently could not wait, and offered its own pubic meeting.
“Time is of the essence in improving the reliability of HECO’s electrical system to the North Shore residents and in order to avoid any further delay by the possibility of not being placed on the North Shore Neighborhood Board agenda for its meeting of September 22, 1998,” Dooling wrote, “HECO is proposing to conduct a public informational meeting to obtain further community input on the sub–ject project.” When this meeting would occur was not specified in the submittal.
When board member Kathryn Whang Inouye asked HECO representatives how soon could visuals be prepared for public review, they said it would take at least six weeks. That means that, even if HECO landed a spot on the Neighborhood Board’s September meeting agenda, it would not be prepared to present the visual simulations, which were asked of them months earlier.
Despite the opponents concerns that the community had not been given ample oppor–tunities to comment, at-large board member Colbert Matsumoto disagreed. Reflecting the majority opinion, he said there had been ample opportunities for the public to participate in the process.
At the Land Board’s September 11 meeting, the North Shore Neighborhood Board re–quested reconsideration of the August vote. HECO representatives thought the request was puzzling and frustrating, saying that the project’s increases hundreds of thousands of dollars each month it is delayed.
Neighborhood Board chair Ken Newfield, testified that the community should see visual simulations because he believed that one of the project’s poles would be within 20 feet of the only hiking trail in the area maintained by Na Ala Hele.
HECO representatives assured him and the Land Board that the pole’s planned location was 300 feet away from the trail.
According to Wilson, Land Board rules state that for an action to be reconsidered, a motion must come from a member who voted in favor of that past action. Despite reiteration from Wilson and Kokubun that a presenta–tion to the Neighborhood Board should be made before the easements are granted, the rest of the board declined to make any motion.
Board member Inouye said that granting the easements was a matter of process, con–cerned only with the part of the project that crossed state land and that “there must be a balance of preservation [of view planes, etc.] and safety.”
More than two years ago, the Land Board gave the DLNR’s Division of Aquatic Resources the green light to start work on amendments to rules governing fishing fees and licenses. A year ago, Governor Cayetano allowed public hear–ings to be held on the proposed rule changes. In all, five public hearings were held on all major islands in November and December 1997.
In the intervening months, the division revised the proposed rules to reflect testimony, worked with the attorney general’s office, and prepared what staff hoped would be the final rules, which it presented to the Land Board on August 28.
Midway through testimony on the item, however, a motion was made to defer action. Some board members had reservations about the effectiveness of the license required of restaurants selling Kona crab and lobster dur–ing the Main Hawaiian Islands closed season. Under the proposed rule, the fee would in–crease to $50 from $1.
The license is required because there is no way to distinguish between lobsters taken from the Main Hawaiian Islands and those caught in the Northwest Hawaiian Islands, where lobsters may be legally caught during summer months when the Main Hawaiian Islands lobster season is closed. The license is intended to make sure that hotels and restau–rants have records showing where the lobsters came from and to deter them from purchasing MHJ lobsters.
“How does forcing a hotel or restaurant to buy a license assist your division’s manage–ment function?” board member Matsumoto asked.
Gary Moniz, acting administrator of the DLNR’s Division of Conservation and Re–source Enforcement, replied that if 100 Ha–waiian lobsters were found in a restaurant’s freezer during the closed season, DOBOR could ask for receipts and see the paper trail back to them.
“Couldn’t you accomplish the same thing without assessing a fee, by having the distributor or fisherman provide a copy of their li–cense?” Matsumoto asked.
Moniz suggested that vendors could work in collusion with fishermen or distributors who sell illegally caught lobsters. However, board members remained unconvinced that imposing a license on retailers was the best way to achieve compliance.
Board member Inouye added, “If the ulti–mate goal is to get compliance during the closed season, then I think we need to sit down and look at how we administer this.” Stu Simmons, president of Seafood Con–nections, a company that sells lobsters to hotels and restaurants, told the board that because the license attached to Hawaiian lobsters raises their price and because the market is in a downturn, the fees should instead rest on the shoulders of the buyers and distributors rather than the retailers. This, he said, could make the price of Hawaiian lobsters more competitive with mainland ones.
Matsumoto decided that he’d “like to re–view this matter more carefully before we act on it,” and moved to defer action. Inouye seconded the motion.
Some testimony followed regarding various other proposed amendments.
Howard Araki, president of Hawai’i Freshwater Fishing Association asked to reduce the suggested tourist freshwater fishing license fee, which was $20 for a 30 day permit. “Tourists who may want to fish are just gonna fish maybe for a day, just out of curiosity,” he said. “They don’t necessarily come to Hawai’i to freshwater fish.”
A commercial fisherman who missed the public hearings found fault with the commer–cial license fee, saying it was not fair that “commercial part-time fishermen who have a 12-foot small boat and want to sell their catch are required to pay the same amount as guys who have 40-50 foot boats and sell their catch six days a week.”
Commercial licenses should be proportion–ate to the size of the vessel and activity, he said.
He also complained that as the proposed rules are now, if he, as a commercial fisherman, wanted to take his wife and kids out for a day of fishing on his boat, they would all have to have licenses. He proposed, instead, to have the license attached to the vessel. After a lengthy discussion about who is or should be required to have a license, the board voted to support Matsumoto’s motion to defer the amend–ments.
According to Alton Miyasaka, an O’ahu aquatic biologist with the Division of Aquatic Resources, the issue of who should have a commercial license was separate from the proposed fee raises that were before the board that day. That issue, he says, is being worked on within the division and may request legislation at some point to clarify the ‘what if’ situations.
PCH Submersibles of Seal Beach, California, has received Land Board approval to harvest pink and gold coral from a bed about six miles off shore of Makapu’u, O’ahu.
PCH and American Deep Water Engineer–ing – the state’s only other permitted har–vester – will share the bed, from which DLNR administrative rules allow a total of 4,400 pounds of coral to be harvested over a two year period.
Matt Peterson, owner of PCH, told the board that this is his first venture in harvesting coral.
“I’m looking at an average of a 12-hour dive, and hoping to harvest up to 500 pounds [a dive]. That would be a blessing,” he said.
Dave Jolley, of American Deep Water En–gineering, the other permittee, testified that he wanted to ensure that PCH also had to adhere to all of the surveying requirements that his company is subject to (length of and depth along transects, copies of harvest records and data recordings including video and still pho–tography, species identification, measurement, depth, temperature, global positioning data, and initial and subsequent harvest data are all some of the things required by the permit).
The board approved the permit, but in–structed staff to work with the permittees to iron out final language that would be equitable with respect to royalties paid, conditions of payment, and the like.
The fishery is regulated by Hawai’i Admin–istrative Rule 13-91, which allows the state to issue permits to any who apply. However, because harvesting precious deepwater corals is very capital intensive – requiring small submarines – few would venture into it, accord–ing to DAR staff.
On July 10, 1998, the Land Board deferred its staff’s recommendation to sell easements across the state’s Judd Trail to Kona landowner Nohona Partners, Inc. for several reasons:
At the time, the 30-day comment period on the final environmental impact statement was still open and it was also not known what the County of Hawai’i’s minimum driveway width was (Staff wanted to limit easement to driveways, as opposed to larger “feeder roads” to prevent any future high-density develop–ment).
It was also felt that the Land Board’s action should be limited to lots that Hawai’i County has approved for subdivision.
Finally, DLNR staff wanted the chance to confirm Nohona Partners’ statement that it would incorporate density control measures in its deeds.
At the August 28 Land Board meeting, Steve Lim, attorney for Nohona Partners, assured the board that the development near the Judd Trail would be low density. The two easements requested would be 15 feet wide, which would limit development, as they could only be used for driveway purposes, according to Uchida, administrator of the DLNR’s Land Division.
Lim testified that it would be impossible to increase development on five-acre lots with 15-foot driveways. If future owners wanted to expand use on their driveway easements, Lim said, they would have to come back to the Land Board.
With no further testimony, the easements were approved. Board member Kokubun refused himself because of his participation as deputy county planning director in the county permitting of this project.
Hwa Lee and Il Sun Baek, owners of a beachlot along Kulamanu Street, have conveyed to the state their interest in a remnant portion of the Old Diamond Head Beach Road makai of their property.
This road at one time extended from Waikiki to Kahala. The part of the road fronting Lee and Baek’s property is now a popular beach site known as “Doris Dukes”, where a three-foot high wall, in good condition, sets off a grassy area that is used by the public for picnics and other recreation.
When the new Diamond Head Road, which runs up the crater’s slopes, was installed, the old beach road was no longer used and lot owners encroached on the old road.
Four of the lot owners sued the state for the rights to use the road. The Hawai’i Supreme Court eventually ruled in their favor. Lee and Baek were not parties in the suit.
According to the staff submittal, Lee and Baek “do not want to have this issue remain with their lot and want to clear the title of this area to the state of Hawai’i by a quitclaim deed.”
On August 28, the Land Board unanimously voted to accept the quitclaim. (For background, see the November 1993 issue of Environment Hawai’i.)
The Land Board expanded the Pacific Missile Range Facility’s capabilities at its August 28 meeting by voting to include the use of Terrier and Aries missiles in the facility’s lease to use state land adjacent to the base, on Kaua’i’s western shore.
The PMRF’s lease with the state originally allowed launching of Strategic Target System (STARS) and Vandal missiles only. The board’s recent action was taken to accommo–date launches of one Terrier and two Aries missiles scheduled between October and De–cember.
Henry Curtis with Life of the Land ques–tioned the appropriateness of this, consider–ing that the final environmental impact state–ment on the PMRF Enhanced Capabilities Program was not yet available.
“For this board to run the risk of approv–ing a project where the FEIS has not been published and has not had the two-month legal right of review or to challenge it, would be to really jump the gun.”
Uchida stated that the EIS would address many things besides the use of Terrier and Aries missiles, which, in any case, he said, had been addressed in a 1992 environmental assessment. What the board was being asked to do, Uchida said, was simply allow PMRF to close the state-owned land three times for the anticipated launches of these missiles through the end of the year. Neither the Aries nor the Terrier missile is as large as the STARS and Vandal missiles, which are already permitted.
Volume 9, Number 4 October 1998
Leave a Reply