REPORT TITLE:
Kaneohe Bay; Private Piers


DESCRIPTION:
Requires any unpermitted pier in Kaneohe Bay existing in whatever
form on the effective date of this Act to be considered a
nonconforming use.  Eliminates the requirement that all
sunbathing and swimming piers built on submerged lands have signs
placed on them indicating the public's right to use the pier.
Includes private residential noncommercial piers as items not
requiring prior legislative and governor approval on easement
dispositions.  (HB1711 HD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        1711
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO KANEOHE BAY.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature has determined that the State
 
 2 has an interest in regulating submerged lands to protect and
 
 3 preserve the environment and ecosystem that exists there.  There
 
 4 are more than two hundred piers on state submerged land in the
 
 5 Kaneohe and Kahaluu area, of which only approximately twenty are
 
 6 paying rent to the State.
 
 7      Many piers in the affected area were built prior to October
 
 8 1, 1964, the effective date of the first regulatory measures
 
 9 concerning piers.  Other piers built after this date were built
 
10 in compliance with other regulations that were in effect at the
 
11 time of construction.  Piers constructed before October 1, 1964,
 
12 and those built subsequent to that date in compliance with
 
13 regulations adopted after that date are nonconforming uses
 
14 pursuant to section 183C-5, Hawaii Revised Statutes, and the
 
15 legislature has previously stated that no rules may be adopted,
 
16 which shall prohibit the continued use of such structures.
 
17      Some piers, however, were built without complying with any
 
18 permitting requirements whether at the time of construction or
 
19 any time thereafter.  These piers are illegal.  The legislature
 
20 finds, however, that official records that would help to identify
 

 
Page 2                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 nonconforming piers and illegal piers are scattered among various
 
 2 state and federal departments and agencies or have been
 
 3 destroyed.  
 
 4      The legislature finds that pier owners have overwhelmingly
 
 5 expressed their desire to pay a reasonable amount to the State
 
 6 for their continued use of submerged lands.  The legislative
 
 7 auditor has previously found that the cost to account for monthly
 
 8 rent for piers has exceeded the revenues realized to the State.
 
 9      The legislature finds that the State has already sold more
 
10 than fifty easements for the use of submerged lands, many of
 
11 which are for piers in the same area.  The legislature finds that
 
12 the issuance of easements for a period of not less than fifty-
 
13 five years, pursuant to section 171-36(a)(2), Hawaii Revised
 
14 Statutes, would result in a substantial return to the State while
 
15 significantly reducing the accounting costs to the State as
 
16 provided in sections 171-13 and 190D-21, Hawaii Revised Statutes.
 
17      Lessees of state land are required pursuant to chapter 171,
 
18 Hawaii Revised Statutes, to indemnify the State against
 
19 liability.  Section 171-36(a)(9), Hawaii Revised Statutes, as now
 
20 constructed, requires lessees to open their piers to the public
 
21 at large.  This provision creates a problem for pier lessees
 
22 because it makes obtaining liability insurance prohibitively
 
23 expensive and difficult to obtain and moreover interferes with
 

 
Page 3                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 pier owners' ability to maintain their structures and implied
 
 2 right to quiet enjoyment.  The legislature, therefore, finds that
 
 3 repealing this requirement as to private residential
 
 4 noncommercial piers is in the best interests of the State.
 
 5      The purpose of this Act is to protect the piers in the
 
 6 Kaneohe and Kahaluu area by:
 
 7      (1)  Requiring any unpermitted pier in Kaneohe Bay existing
 
 8           in whatever form on the effective date of this Act to
 
 9           be considered a nonconforming use in the conservation
 
10           district;
 
11      (2)  Eliminating the requirement in section 171-36(a)(9),
 
12           Hawaii Revised Statutes, that lessees open their piers
 
13           to the public at large; and
 
14      (3)  Expediting the issuance of easements for piers by
 
15           including private residential noncommercial piers as
 
16           items not requiring prior legislative and governor
 
17           approval on easement dispositions.
 
18      SECTION 2.  Section 171-36, Hawaii Revised Statutes, is
 
19 amended by amending subsection (a) to read as follows:
 
20      "(a)  Except as otherwise provided, the following
 
21 restrictions shall apply to all leases:
 
22      (1)  Options for renewal of terms are prohibited;
 
23      (2)  No lease shall be for a longer term than sixty-five
 

 
Page 4                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           years, except in the case of a residential leasehold
 
 2           which may provide for an initial term of fifty-five
 
 3           years with the privilege of extension to meet the
 
 4           requirements of the Federal Housing Administration,
 
 5           Federal National Mortgage Association, Federal Land
 
 6           Bank of Berkeley, Federal Intermediate Credit Bank of
 
 7           Berkeley, Berkeley Bank for Cooperatives, or Veterans
 
 8           Administration requirements; provided that the
 
 9           aggregate of the initial term and extension shall in no
 
10           event exceed seventy-five years;
 
11      (3)  No lease shall be made for any land under a lease which
 
12           has more than two years to run;
 
13      (4)  No lease shall be made to any person who is in arrears
 
14           in the payment of taxes, rents, or other obligations
 
15           owing the State or any county;
 
16      (5)  No lease shall be transferable or assignable, except by
 
17           devise, bequest, or intestate succession; provided that
 
18           with the approval of the board of land and natural
 
19           resources, the assignment and transfer of a lease or
 
20           unit thereof may be made if:
 
21           (A)  It contains the personal residence of the lessee;
 
22           (B)  In the case of commercial, industrial, hotel,
 
23                resort, apartment, and other business uses, the
 

 
Page 5                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1                lessee was required to put in substantial building
 
 2                improvements;
 
 3           (C)  The lessee becomes mentally or physically
 
 4                disabled;
 
 5           (D)  Extreme economic hardship is demonstrated to the
 
 6                satisfaction of the board;
 
 7           (E)  It is to the corporate successor of the lessee; or
 
 8           (F)  In the case of agricultural uses, the assignee
 
 9                meets the qualifications of a bona fide individual
 
10                farmer or a nonindividual farm concern pursuant to
 
11                section 171-14.5, in addition to or
 
12                notwithstanding the other conditions of this
 
13                paragraph;
 
14           provided further that prior to the approval of any
 
15           assignment of lease, the board shall have the right to
 
16           review and approve the consideration to be paid by the
 
17           assignee and may condition its consent to the
 
18           assignment of the lease on payment by the lessee of a
 
19           premium based on the amount by which the consideration
 
20           for the assignment, whether by cash, credit, or
 
21           otherwise, exceeds the depreciated cost of improvements
 
22           and trade fixtures being transferred to the assignee;
 
23           provided further that with respect to state
 

 
Page 6                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1           agricultural leases, in the event of foreclosure or
 
 2           sale, the premium, if any, shall be assessed only after
 
 3           the encumbrances of record and any other advances made
 
 4           by the holder of a security interest are paid;
 
 5      (6)  The lessee shall not sublet the whole or any part of
 
 6           the demised premises except with the approval of the
 
 7           board; provided that prior to the approval, the board
 
 8           shall have the right to review and approve the rent to
 
 9           be charged to the sublessee; provided further that in
 
10           the case where the lessee is required to pay rent based
 
11           on a percentage of its gross receipts, the receipts of
 
12           the sublessee shall be included as part of the lessee's
 
13           gross receipts; provided further that the board shall
 
14           have the right to review and, if necessary, revise the
 
15           rent of the demised premises based upon the rental rate
 
16           charged to the sublessee including the percentage rent,
 
17           if applicable, and provided that the rent may not be
 
18           revised downward;
 
19      (7)  The lease shall be for a specific use or uses and shall
 
20           not include waste lands, unless it is impractical to
 
21           provide otherwise; and
 
22      (8)  Mineral and metallic rights and surface and ground
 
23           water shall be reserved to the State[; and
 

 
Page 7                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1      (9)  No lease of public lands, including submerged lands,
 
 2           nor any extension of any such lease, shall be issued by
 
 3           the State to any person to construct, use, or maintain
 
 4           a sunbathing or swimming pier or to use the lands for
 
 5           such purposes, unless such lease, or any extension
 
 6           thereof, contains provisions permitting the general
 
 7           public to use the pier facilities on the public lands
 
 8           and requiring that a sign or signs be placed on the
 
 9           pier, clearly visible to the public, which indicates
 
10           the public's right to the use of the pier.  The board,
 
11           at the earliest practicable date, and where legally
 
12           possible, shall cause all existing leases to be amended
 
13           to conform to this paragraph.  The term "lease", for
 
14           the purposes of this paragraph, includes month-to-month
 
15           rental agreements and similar tenancies]."
 
16      SECTION 3.  Section 171-53, Hawaii Revised Statutes, is
 
17 amended by amending subsection (c) to read as follows:
 
18      "(c)  The board, with the prior approval of the governor and
 
19 the prior authorization of the legislature by concurrent
 
20 resolution, may lease submerged lands and lands beneath tidal
 
21 waters under the terms, conditions, and restrictions provided in
 
22 this chapter; provided that the approval of the governor and
 
23 authorization of the legislature shall not be required for any
 

 
Page 8                                                     1711
                                     H.B. NO.           H.D. 2
                                                        
                                                        

 
 1 grant of easement or lease of submerged lands or lands beneath
 
 2 tidal waters used for private residential noncommercial piers,
 
 3 docks, moorings, cables, or pipelines; provided further that this
 
 4 exemption shall not apply to easements for cables used for
 
 5 interisland electrical transmission or slurry pipelines used for
 
 6 transportive materials, mined at sea, or waste products from the
 
 7 processing of the same.
 
 8      The lease shall provide that the lands shall be reclaimed at
 
 9 the expense of the lessee.  Title to the reclaimed lands shall
 
10 remain in the State."
 
11      SECTION 4.  Notwithstanding any law to the contrary, any
 
12 existing private residential noncommercial pier in Kaneohe Bay,
 
13 located offshore of property between Kealohi Point and Nuupia
 
14 Pond, in the effective day of this Act, shall be considered
 
15 nonconforming for the purposes of Chapter 183C, Hawaii Revised
 
16 Statutes; provided that the owner of the pier obtains all
 
17 necessary approvals and land disposition from the department of
 
18 land and natural resources.  Any penalties assessed under section
 
19 183C-7(b) for violations under section 183C-5 prior to the
 
20 effective day of this Act shall be expunged.
 
21      SECTION 5.  Statutory material to be repealed is bracketed.
 
22 New statutory material is underscored.
 
23      SECTION 6.  This Act shall take effect upon its approval.