6E-42 Review of proposed projects. (a) Before any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places. If:

(1) The proposed project consists of corridors or large land areas;

(2) Access to properties is restricted; or

(3) Circumstances dictate that construction be done in stages,

the department's review and comment may be based on a phased review of the project; provided that there shall be a programmatic agreement between the department and the project applicant that identifies each phase and the estimated timelines for each phase.

(b) The department shall inform the public of any project proposals submitted to it under this section that are not otherwise subject to the requirement of a public hearing or other public notification.

(c) The department shall adopt rules in accordance with chapter 91 to implement this section. [L 1988, c 265, pt of 1; am L 1990, c 306, 12; am L 1995, c 187, 3; am L 1996, c 97, 10; am L 2013, c 85, 3]

 

Law Journals and Reviews

 

Ensuring Our Future by Protecting Our Past: An Indigenous Reconciliation Approach to Improving Native Hawaiian Burial Protection. 33 UH L. Rev. 321 (2010).

 

Case Notes

 

Where rules implementing 6E-8 and this section required that historic properties be identified in the "project area", and the broad definition of "project area" contained in the rules encompassed the entire rail project, the rules did not permit the state historic preservation division (SHPD) to concur in the rail project absent a completed archeological inventory survey (AIS) for the entire project area; because an AIS was not completed before the SHPD gave its concurrence in the project, the SHPD's concurrence in and the city's commencement of the project were improper. 128 H. 53, 283 P.3d 60 (2012).

This section requires a permitting agency to seek state historic preservation division review and comment only when the permitting agency knows, or has reason to suspect, that the project may impact a burial or other historic site; where there was no evidence that defendant city department of planning and permitting knew or should have known that a burial site existed on the property, the circuit court properly ruled that the city did not violate this section. 122 H. 171 (App.), 223 P.3d 236 (2009).

As: (1) this section applies to any project "which may affect historic property ... or a burial site", as defined by 6E-2; (2) a burial site can be found in a cemetery; and (3) a cemetery can also be a historic property, as also defined by 6E-2, church building project was not exempt from the historic preservation review process required by this section and its implementing rules because the project involved a cemetery. 128 H. 455 (App.), 290 P.3d 525 (2012).

The state historic preservation division (SHPD) violated chapter 13-284, HAR, its rules implementing this section, by failing to require the completion of an archaeological inventory survey (AIS); by accepting an archaeological monitoring plan as a substitute for an AIS, the SHPD skipped to the mitigation step of the review process and allowed construction on the church building project to commence without identifying the significant historic properties at issue and evaluating the impact of the project on them, thereby limiting the potential options for their protection and preservation. 128 H. 455 (App.), 290 P.3d 525 (2012).

Where the main footprint of the church building project had not been maintained and actively used as a cemetery for over sixty years and the church was not in the process of removing or redesignating the project site as a cemetery when government approval for the project was sought, 6E-43(a), which excludes human skeletal remains found in a "known, maintained, actively used cemetery", did not apply to the project; thus, the project and the burial sites it affected were subject to the requirements of this section. 128 H. 455 (App.), 290 P.3d 525 (2012).

Where the state historic preservation division (SHPD) did not make a determination that no historic properties were present or that an adequate archaeological inventory survey (AIS) existed and that historic properties were present, thereby allowing for evaluation of the significance of the historic properties, completion of an AIS was a necessary first step to replace the church buildings; thus, the SHPD: (1) should have required the church to complete an AIS before concurring in the church building project; and (2) violated its own rules by failing to require an AIS before permitting the project to go forward. 128 H. 455 (App.), 290 P.3d 525 (2012).

 

 

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