Land Uses, and Abuses, Prompt a Flood of Bills

posted in: February 1991 | 0

Recent development pressures have illustrated dramatically the weakness of laws governing forest areas and Conservation District lands. A report by the Legislative Auditor on residential uses in the Conservation District has disclosed still more flaws in the administration of those laws by the Department of Land and Natural Resources. The auditor found that, among other things, DLNR rules “lack specific standards for residences” and thus “they give wide discretion to the board” (of Land and Natural Resources). Also, “provisions in the rules for nonconforming use may exceed the authority of the statutes.”

The auditor’s spot check of 14 applications to build houses in the Conservation District found 11 had inadequate environmental assessments. In six cases, “the potential environmental impact appeared to warrant an environmental impact statement.” Moreover, the Office of Conservation and Environmental Affairs “incorrectly gave nonconforming status to three of the 14 applications in our sample. As a result, in two cases the applicants obtained a legal right to a house in the limited subzone where they otherwise would have been prohibited from building under the policy of the Board of Land and Natural Resources.”

(For a fuller discussion of residential uses in the Conservation District, see the September 1990 Environment Hawai`i and the Legislative Auditor’s Report No. 91-1, January 1991.)

Reining in the Board

One of the problems identified by the Legislative Auditor was the lack of standards governing construction that is neither nonconforming, nor temporary, nor permitted (the only uses described in the statute), but which the Board nonetheless permits as conditional use. All manner of activities — from H-3 to golf courses to corporate retreats disguised as vacation cottages — have been allowed under this term. A bill by Representative Cynthia Thielen would amend present law to state that no use except the three authorized by statute shall be allowed by the Board. It may well be one of the most important bills relating to Conservation District protection in this session.

Natural Area Partnerships

Thousands of acres of forest lands, including many eligible for designation as a Natural Area Reserve, are in private hands. Sometimes they are in the Conservation District, but frequently they have been placed in the Agriculture District. In any event, there is a clear need for the state to encourage the wise management of these areas, valuable as watersheds and habitat for rare species, and absolutely vital to prevent nonpoint source pollution and loss of precious soils.

That is the idea behind two bills from the Department of Land and Natural Resources. One proposes a “natural area partnership,” under which the state would provide $2 for each $1 that a private landowner spends in carrying out an approved management plan for lands deemed of “natural area” quality.

The second bill would establish a forest stewardship program for lands that may not qualify as natural areas, but which are still in need of management for conservation purposes. Landowners would receive grants if they agree to implement an approved management plan for at least 10 years. In this case, plans may include the controlled harvest of timber and other forest crops. The extent of assistance will vary upward from a minimum dollar-for-dollar sharing of costs.

Land Exchange Reviews

At present, the state may exchange lands with private parties and, unless the Legislature votes it down the next year (either by a two-thirds vote against the swap in one chamber, or by a majority vote in both), the deal stands. A bill proposed by Virginia Isbell would require that the exchange be heard by at least one committee in both the House and the Senate — and thus would allow public testimony on the deal.

A bill by Ken Hiraki would divide land exchanges into two categories: those in which the public land is valued at more than $1 million, and those in which the value is $1 million or less. Exchanges involving the second category would continue to be handled as they now are. Trades in the new category would require approval of majorities in both chambers. Perhaps the idea is that this will make major land trades subject to greater scrutiny. But in fact, the bill would eliminate the possibility that a two-thirds vote in either chamber could block consummation of the trade. In that sense, it might make land trades easier.

LESA and Variations

In most general terms, the Land Evaluation and Site Assessment bill calls for viewing all non-urban land through the lens of potential agricultural value. The bill would direct the Land Use Commission to redraw the boundaries of the Agriculture District using maps prepared by the Office of State Planning three years ago — and thus it would pre-empt the current OSP review of land use districts. Consideration of this bill should be delayed until the current boundary review is completed.

Another bill, from the Office of State Planning, would set up a Land Evaluation Rating System and add a new land district, open space. Lands proposed for inclusion in that district are now primarily in the agricultural district. The purpose of the new category would be to provide open space but also to serve as a land bank. In a separate measure, the OSP also proposes eliminating golf courses from ag lands where they are now permitted (lands deemed marginal, for the most part).

Volume 1, Number 8 February 1991

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